J-S45009-19

                                  2019 PA Super 339



    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    CHENG JIE LU,

                             Appellant                  No. 2658 EDA 2017


         Appeal from the Judgment of Sentence Entered August 3, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009321-2016


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

OPINION BY BENDER, P.J.E.:                       FILED NOVEMBER 13, 2019

        Appellant, Cheng Jie Lu, appeals from the judgment of sentence of 3 to

6 months’ incarceration, followed by 4 years’ probation, imposed after the trial

court convicted him, following a non-jury trial, of conspiracy, 18 Pa.C.S. §

903, and promoting, managing, or supervising a house of prostitution

business, 18 Pa.C.S. § 5902(b)(1). On appeal, Appellant avers that the trial

court’s admission of an out-of-court statement by an unavailable witness

violated his Sixth Amendment right to confrontation. After careful review, we

agree with Appellant. Therefore, we vacate his judgment of sentence and

remand for a new trial.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      The trial court summarized the facts underlying Appellant’s convictions,

as follows:

             On August 18, 2016, Officer Stanley Kaluza received a
      complaint from the FBI. The complaint originated from the
      National Center for Missing and Exploited Children (hereinafter
      “NCMEC”) … regarding a Back Page posting of potential underage
      girls involved in prostitution. The posting was forwarded from
      NCMEC to the FBI[,] who then forwarded the information to Officer
      Kaluza. Officer Kaluza investigated [the] Back Page posting….
      Officer Kaluza found 20 postings by the same user on August 18,
      2016. Officer Kaluza believed there was cause for concern and
      proceeded to investigate further.

             On August 18, 2016, around 7:04 p.m.[,] Officer Kaluza
      placed a phone call to the number advertised on the Back Page
      posting, the line rang twice before an “Asian female voice
      answered,” and asked Officer Kaluza if he would like to see her.
      Officer Kaluza answered affirmatively, and the woman’s voice
      replied that she would send him the address. After waiting a few
      minutes and not receiving an address, Officer Kaluza placed
      another call and stated that he would like to come see the voice
      on the other end of the line. She then said, “Okay I’ll send you
      address.” Officer Kaluza then received the address via text and
      instructions on how to enter the alleged house of prostitution.
      Officer Kaluza was instructed to make his way to 2422 Rhawn
      Street, Philadelphia, PA 19152[,] and to enter the brown door on
      the left[-]hand side of the pizza store and specifically not the pizza
      store. After the initial text conversation, Officer Kaluza was told
      the address of the posting would be open until 2:00 a.m. Officer
      Kaluza then proceeded to make inquiries about prices and was
      told via text that there were four young girls and that Officer
      Kaluza could do whatever he wanted for $120 for a half hour or
      $140 for a full hour. Due to the nature of the complaint, Officer
      Kaluza sent a text to the number stating he liked young girls, and
      he received a response that there were six girls to choose from.

            On August 18, 2016, at approximately 11:30 p.m., Officer
      Kaluza arrived, undercover in plain[]clothes, at 2422 Rhawn
      Street. Officer Kaluza rang the doorbell, and the door was opened
      by [Appellant]. Officer Kaluza told [Appellant], “I must have the
      wrong place.” [Appellant] shook his head and waved Officer
      Kaluza into the foyer area of the unit. Officer Kaluza again

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     ask[ed], “Is this the right place?”[] and [Appellant] replied
     affirmatively in English. [Appellant] then led Officer Kaluza up the
     staircase and to the right into a room where Officer Kaluza saw
     three Asian women dressed in lingerie sitting on a sofa.

            [Appellant] then walked Officer Kaluza closer to the three
     girls.   [Appellant] stood on the right of Officer Kaluza and
     motioned with an open hand indicating that he was presenting the
     three girls for Officer Kaluza to choose from. At the sight of the
     presentation, Officer Kaluza asked, “wow, I pick?”[] to which the
     three girls laughed, but [Appellant] remained silent. At this point
     Xiu Xui [hereinafter “Xui”], one of the three women presented to
     Officer Kaluza, asked Officer Kaluza what sort of service he would
     want. Officer Kaluza replied he just wanted to have fun and chose
     Xui because she was the female who spoke with him.

           Xui then escorted Officer Kaluza up to the third floor of the
     building. Xui opened the [door to the] front room … and saw a
     sleeping woman [on the floor]. Xui turned [O]fficer Kaluza around
     and they made their way to a stripped down bedroom in the rear
     of the building. Officer Kaluza stated for the record the bedroom
     was approximately eight-by-eight feet, had a night table, and a
     bed. Xui placed a bag of condoms and lubricant on the night table
     and proceeded to count the prerecorded bills Officer Kaluza had
     brought…. Xui proceeded to give a massage to Officer Kaluza.
     After some time, Xui stopped the massage, pointed at the
     condoms, and asked Officer Kaluza if he would like to begin having
     sexual relations. Officer Kaluza stated he would[,] and [he]
     proceeded to ask questions to better understand the exact sexual
     service Xui would provide. Xui pointed to her mouth and vagina,
     but explained that the girls were not allowed to have anal sex.

            At this time, Officer Kaluza only knew of four women,
     [Appellant], and himself as being the only persons in the building.
     Officer Kaluza then asked Xui who the man downstairs was. Xui
     identified [Appellant] as the manager. Officer Kaluza then stated
     that [Appellant did] not seem very nice[,] and Xui replied by
     shaking her head. At that point, the arrest team made a non[-]
     forceful entry because [Appellant] opened the door for the arrest
     team. Based on Officer Kaluza’s belief that [Appellant] was the
     manager operating this particular prostitution ring, [Appellant]
     was placed under arrest for operating a house of prostitution.
     Officer Kaluza’s arrest team found $2,900 in the house, a grey
     iPhone 6S on [Appellant’s] person, and purses. Officer Kaluza, in
     plain clothes, conducted his investigation undercover and at no

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      point during his investigation identif[ied] himself as a police
      officer. Only at the time of making the arrest did he identify
      himself as a police officer.

Trial Court Opinion (TCO), 8/10/18, at 2-5 (footnote and citations to the

record omitted).

      Appellant was arrested and charged with the above-stated offenses.

Prior to his non-jury trial, the Commonwealth filed a motion in limine, seeking

to admit the hearsay statements that Xui made to Officer Kaluza, namely her

remark that Appellant was “the manager.” N.T. Trial, 4/11/17, at 56. After

lengthy oral arguments by both parties just prior to the start of trial, the court

ruled that the statements were admissible under the hearsay exception set

forth in Pa.R.E. 803(25)(E) (permitting the admission of a hearsay statement

“made by the party’s coconspirator during and in furtherance of the

conspiracy”).   See id. at 38.      Notably, the court did not comment on

Appellant’s argument that the admission of the statement would violate his

Sixth Amendment right to confront witnesses against him, but it implicitly

rejected that claim by ruling that the statement was admissible. Appellant’s

trial then commenced, and at the close thereof, the court convicted him of the

above-stated offenses. On August 3, 2017, the court sentenced him to the

aggregate term set forth supra.

      Appellant filed a timely notice of appeal, and he also complied with the

trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court issued its Rule 1925(a) opinion on August

10, 2018. Herein, Appellant presents one issue for our review: “Did the trial


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court err, especially in a bench trial, in allowing the admission of hearsay

testimony which violated [Appellant’s] constitutional right to directly confront

the testimony of a witness against him?” Appellant’s Brief at 2.

      Preliminarily, we observe that, whether the admission of Xui’s statement

to Officer Kaluza “violated Appellant’s rights under the Confrontation Clause

is a question of law, for which our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Yohe, 79 A.3d 520, 543-44 Pa.

2013). As our Supreme Court has explained,
      [i]n Crawford [v. Washington, 541 U.S. 36 (2004)], a case
      involving custodial statements, the Supreme Court held “[w]here
      testimonial statements are at issue, the only indicium of reliability
      sufficient to satisfy constitutional demands is the one the
      Constitution actually prescribes: confrontation.” Crawford, at
      68–69, 124 S.Ct. 1354. Specifically, “[w]here testimonial
      evidence is at issue, ... the Sixth Amendment demands what the
      common law required: unavailability and a prior opportunity for
      cross-examination.” Id.[] at 68, 124 S.Ct. 1354. The Supreme
      Court, however, did not provide a specific definition of the type of
      testimonial statements covered by the Confrontation Clause. As
      noted above, the Supreme Court identified three possible
      formulations of the “core class” of testimonial material covered by
      the Confrontation Clause. Because the statements at issue in
      Crawford were “testimonial under any definition,” id.[] at 61,
      124 S.Ct. 1354[,] the Supreme Court left “for another day any
      effort to spell out a comprehensive definition of ‘testimonial.’”
      Id.[] at 68, 124 S.Ct. 1354.

          In Davis [v. Washington, 547 U.S. 813 (2006)], a case
      involving statements made to a 911 operator in an emergency
      situation, the Supreme Court developed the “primary purpose”
      test to evaluate out-of-court statements which do not squarely fall
      into the core class. In Davis, the Supreme Court distinguished
      between two types of statements that can be made to a police
      officer: one category of statements is non[-]testimonial, the other
      is testimonial. The Supreme Court articulated the distinction as
      follows:


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        Statements are non[-]testimonial when made in the course
        of police interrogation under circumstances objectively
        indicating that the primary purpose of the interrogation is to
        enable police assistance to meet an ongoing emergency.
        They are testimonial when the circumstances objectively
        indicate that there is no such ongoing emergency, and that
        the primary purpose of the interrogation is to establish or
        prove past events potentially relevant to later criminal
        prosecution.

     Davis, [547 U.S.] at 822, 126 S.Ct. 2266.

Commonwealth v. Dyarman, 73 A.3d 565, 571-72 (Pa. 2013).

     As is clear from this case law, Appellant’s Confrontation Clause turns on

whether Xui’s statement to Officer Kaluza was testimonial or non-testimonial.

To make this determination, we

     must determine whether the primary purpose of the interrogation
     was to establish or prove past events relevant to a later criminal
     prosecution. In making the determination as to the primary
     purpose of an interrogation, a court first should determine
     whether the interrogation occurred during the existence of an
     ongoing emergency, or what was perceived to be an ongoing
     emergency. Although the existence—actual or perceived—of an
     ongoing emergency is one of the most important factors, this
     factor is not dispositive because there may be other
     circumstances, outside of an ongoing emergency, where a
     statement is obtained for a purpose other than for later use in
     criminal proceedings. In determining the primary purpose of an
     interrogation, a court must also objectively evaluate the
     circumstances surrounding the interrogation, including the
     formality and location, and the statements and actions of both the
     interrogator and the declarant.

Commonwealth v. Allshouse, 36 A.3d 163, 175-76 (Pa. 2012).

     Here, the Commonwealth offers no argument that Xui’s statement was

provided to Officer Kaluza during the course of an ongoing emergency.

Appellant argues that it was not, as Officer Kaluza was not “summoned to



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address an ongoing crisis involving potential or actual injury to person or

property.” Appellant’s Brief at 19. We agree with Appellant. Officer Kaluza

did not arrive at the scene in response to an emergency call; instead, he came

there, at a time of his choosing, for the purpose of conducting an undercover

investigation. While the basis for the officer’s investigation was the NCMEC

tip concerning the possible sexual exploitation of minors, which was

understandably concerning to the officer, nothing in the record indicates that

Officer Kaluza rushed to the premises believing that a minor was in immediate

danger, or that there was any other sort of emergency occurring there.

Additionally, nothing in Xui’s actions or statements suggested that she

believed she was in an emergency situation.      Therefore, we conclude that

there was no real, or perceived, emergency occurring at the time Xui made

the at-issue statement to Officer Kaluza.

      Instead, viewing the circumstances of Xui’s statement objectively, we

agree with Appellant that the primary purpose of Officer Kaluza’s interrogation

was “to establish or prove past events potentially relevant to later criminal

prosecution.” Davis, 547 U.S. at 822. Again, Officer Kaluza was present at

the location for the purpose of conducting an undercover investigation into

potential prostitution. Once the officer entered the premises, his suspicions

of criminal activity were confirmed by the actions and statements of Appellant

and Xui.   Notably, prior to asking the question that elicited Xui’s at-issue

statement, Officer Kaluza surreptitiously radioed for backup.       N.T. Trial,

4/11/17, at 6, 56.   The officer then continued to question Xui, asking her

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“who’s the male downstairs?” Xui replied, “he’s the manager.” Id. at 56.

When Officer Kaluza then said that Appellant “doesn’t seem very nice[,]” Xui

“just shook her head and wouldn’t say anything more.” Id.

      The officer’s question about who Appellant was had no clear relevance

to his interaction with Xui, or to his decision to call in his backup officers,

which he did just prior to asking that question. Moreover, Appellant’s actions

of letting the officer into the building, leading him upstairs, and gesturing to

the lingerie-clad women as if offering them for the officer to pick was certainly

enough to establish probable cause to arrest Appellant, yet the officer still

questioned Xui about Appellant’s identity.       Viewing these circumstances

objectively, it is apparent that “the primary purpose of the interrogation [was]

to establish or prove past events potentially relevant to later criminal

prosecution.” Davis, 547 U.S. at 822. Thus, Xui’s statement was testimonial.

      We also conclude that the case on which the Commonwealth relies,

Commonwealth v. Holton, 906 A.2d 1246 (Pa. 2006), does not require us

to reach a different result. In Holton, an undercover officer purchased drugs

from Holton through a woman, Tanya Fitts, who took the officer’s money, went

inside a bar, and returned to the officer’s vehicle with the drugs. Id. at 1248.

Ms. Fitts indicated to the undercover officer that she had obtained the drugs

from Holton. Id. In concluding that Ms. Fitts’ statement to the officer was

non-testimonial, this Court principally relied on Crawford and United States

v. Hendricks, 395 F.3d 173, 181 (3d Cir. 2005) (holding that statements

“surreptitiously intercepted by law enforcement” through wiretaps were non-

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testimonial “because they do not fit within the framework given by Crawford

to define ‘testimonial’ statements”). In particular, the Holton panel focused

on the fact that Ms. Fitts’ statements did “not fall within any of the three

specific examples of ‘testimonial’ evidence given by the Crawford Court,” as

they were not “ex parte in-court testimony or its functional equivalent, …

extrajudicial statements … contained in formalized … materials, such as

affidavits, depositions, prior testimony, or confessions[, or] … statements that

were made under circumstances that would lead an objective witness

reasonably to believe that the statement would be available for use at a later

trial.”    Holton, 906 A.2d at 1254 (quoting Crawford, 541 U.S. at 51-52)

(internal quotation marks omitted)).     Additionally, the Holton panel also

relied on Hendricks to conclude that the statements were non-testimonial

because Ms. Fitts did not know that the undercover patrolman was a police

officer and, as such, her “admissions were unwittingly made, without any

indication that these statements may be used at a later time for prosecutorial

purposes.” Id. at 1254 (citing Hendricks, 395 F.3d at 183).

          Importantly, Holton was premised exclusively on cases issued after

Crawford and before Davis, which unquestionably expanded upon, and

clarified, Crawford’s distinction between testimonial and non-testimonial

statements. As mentioned supra, the Crawford Court explicitly declared that

it left “for another day any effort to spell out a comprehensive definition of

‘testimonial[,]’” and it was only in Davis that the Court “developed the

‘primary purpose’ test to evaluate out-of-court statements which do not

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squarely fall into the core class” of testimonial statements defined in

Crawford. Dyarman, 73 A.3d at 572 (quoting Crawford, 541 U.S. at 68).

While Holton was decided shortly after Davis and the panel acknowledged

the High Court’s holding in that case, see Holton, 906 A.2d at 1254, the

Holton panel did not discuss Davis or apply its “primary purpose” test to

discern the nature of Ms. Fitts’ out-of-court statements. Instead, the Holton

panel merely discussed why her remarks did not fit into Crawford’s “core

class” of testimonial statements, and compared the case to the pre-Davis

decision in Hendricks. Because the Holton panel did not apply the “primary

purpose” test created in Davis, as we do herein, we are not bound by the

result reached in Holton.

       In sum, we conclude that Xui’s statement to Officer Kaluza that

Appellant was “the manager” was testimonial. Therefore, the trial court erred

by admitting it when Xui was unavailable and Appellant did not have the

opportunity to cross-examine her.              Accordingly, we vacate Appellant’s

judgment of sentence and remand for a new trial.1

       Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

       Judge Pellegrini joins this opinion.

              Judge Murray files a dissenting opinion.

____________________________________________


1 In light of this disposition, we need not address Appellant’s remaining
challenge to the admission of Xui’s statement under the rule precluding
hearsay evidence.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/19




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