J-A05022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES BROOKS,

                            Appellant               No. 785 EDA 2014


      Appeal from the Judgment of Sentence entered January 31, 2014,
             in the Court of Common Pleas of Delaware County,
            Criminal Division, at No(s): CP-23-CR-0005143-2013


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J:                        FILED FEBRUARY 24, 2015

       James Brooks, (“Appellant”), appeals from the judgment of sentence

imposed after a jury convicted him of firearm not to be carried without a

license, and possession of a firearm with an altered manufacturer’s number;

and the trial court convicted him of carrying a firearm as a prohibited

person, possession of a small amount of marijuana, and DUI general

impairment (refusal).1

       The trial court summarized the pertinent facts and procedural history

as follows:

             On Sunday, April 21, 2013, at approximately 4:50 AM,
       Officer Amanda Klingensmith of the Upper Darby Police
       Department, while in full uniform and on patrol in a marked
____________________________________________


1
  18 Pa.C.S.A. §§ 6106(a)(1), 6110.2(a) and 6105(a)(1); 35 P.S. § 780-
113(a)(31); and 75 Pa.C.S.A. § 3802(a)(1).
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     vehicle, was engaged in assisting at an accident scene in Upper
     Darby Township, Delaware County, Pennsylvania. The early
     morning calm was interrupted by squealing tires. The officer
     looked in the direction of the noise, saw a vehicle drive up onto a
     curb (near the intersection of Marshall Road and Long Lane),
     strike an object and, simultaneously, heard a loud crash. She
     then watched the vehicle back off the sidewalk, proceed across
     Marshall Road and then north on Long Lane.                   Officer
     Klingensmith jumped into her patrol car, activated her
     emergency overhead lights and siren, and began pursuit of the
     errant vehicle. As she passed the intersection from which the
     flurry of vehicular activity was seen, she noticed one traffic light
     was demolished and the remaining lights at the intersection were
     flashing. Her pursuit ended a short distance up Long Lane when
     she was able to stop behind the vehicle, a silver Pontiac Grand
     Am (PA Tag JGG 1636). She saw fluid flowing onto the street
     which streamed downhill toward the patrol car.               Officer
     Klingensmith reported the stop to her dispatcher, provided
     identification information on the car, and explained it was
     leaking. As she approached the passenger side window, she
     noted that the odor from the fluid emanating from the bottom of
     the car smelled like gasoline. A backup from the Upper Darby
     Police Department, Officer Randy Desrosiers, appeared at the
     scene.

           When she looked in the passenger window, she saw a man
     in the driver’s seat (identified as [Appellant]) slumped over with
     his eyes closed. The Officer inquired of [Appellant] whether he
     was sick or injured. After opening his eyes, he acknowledged he
     was neither. No signs of physical injury were evident.

           [Appellant] was directed to shut off the ignition and exit to
     the front of the vehicle. She observed heavy damage to the
     front of the car. After he complied, [Appellant] was told to move
     onto the sidewalk and away from the leaking car. [Appellant]
     showed classic signs of intoxication: eyes bloodshot and glassy,
     slurred speech and stumbling gait, all laced with the smell of
     alcohol.

            Another Upper Darby police officer, Sergeant Steven
     Oreskovich, a certified Field Sobriety Test instructor was
     summoned to the scene. He asked [Appellant] to perform three
     field sobriety tests (horizontal gaze nystagamus ("HGN”) test,
     the walk-and-turn test, and the one-legged stand test).


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      [Appellant] failed all three. Sgt. Oreskovich opined that the test
      results indicated [Appellant] was incapable of safely operating a
      motor vehicle at the time. [Appellant] was taken into custody
      and transported to nearby Delaware County Memorial Hospital,
      where, after having been advised of his rights and
      responsibilities in connection with chemical testing of drivers, he
      refused to allow a blood draw. [Appellant] was then taken to the
      Upper Darby Township Police Headquarters.

             Shortly after [Appellant] was arrested, Officer Desrosier
      conducted an inventory search of the Pontiac before it was
      towed from the scene. He first found two vials (containing green
      leafy matter) in the vehicle’s center console. In addition, within
      the center console, Officer Desrosiers found two plastic vials
      within which was seen a green leafy vegetable matter. Both
      field tested positive for marijuana. The field test was confirmed
      through additional analysis. As he withdrew from the car, he
      encountered a protruding handle of a handgun, sandwiched
      between the driver’s seat and the center console. The firearm
      was a black 9 mm Ruger model LC-9 pistol (loaded with five 9
      mm rounds and one in the firearm’s chamber). He noted that
      the gun’s serial number had been obliterated.

            A criminal history check through NCIC revealed that
      [Appellant], in 1993, was convicted of Robbery, a felony in
      Philadelphia. That disposition rendered it illegal for [Appellant]
      to possess a firearm. The investigation also included a check for
      a license to allow [Appellant] to carry a concealed weapon.
      [Appellant] never secured such an authorization. Inquiry of
      PennDOT disclosed that [Appellant] was not licensed to drive and
      that the Pontiac was registered to another individual.

             Subsequent testing revealed that the Ruger was
      operational and that the rounds discovered were live. Based on
      the pre-dawn events and the information obtained, [Appellant]
      was charged with: Person not to possess, use, manufacture,
      control, sell or transfer firearms; Possession of a firearm with
      altered manufacturer’s number; Firearms not to be carried
      without a license; Possession of a small amount of marijuana;
      Driving Under the Influence (General Impairment, refusal);
      Driving Under the Influence (Controlled Substance – impaired
      ability) and, several summary offenses.

Trial Court Opinion, 7/9/14, at 1-3 (footnotes omitted).

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      A bifurcated trial commenced on December 10, 2013, at the conclusion

of which the jury found Appellant guilty of firearm not to be carried without a

license, and possession of a firearm with an altered manufacturer’s number,

and the trial court found Appellant guilty of carrying a firearm as a

prohibited person, possession of a small amount of marijuana, and DUI

general impairment (refusal). The Commonwealth withdrew the remaining

charges.

      Following a hearing on January 31, 2014, the trial court sentenced

Appellant to ten (10) to twenty (20) years of imprisonment, followed by four

(4) years of probation. Appellant filed a motion for reconsideration, which

the trial court denied on February 12, 2014.     This appeal followed.    Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:


      I.    SHOULD THE SCOPE OF CROSS EXAMINATION OF
            CHARACTER WITNESS TESTIMONY BE EVALUATED UNDER
            PA.R.E. 404-405 OR PA.R.E. 609?

      II.   SHOULD THE APPELLANT’S PRIOR CONVICTION HAVE
            BEEN PRECLUDED FROM THE SCOPE OF CROSS
            EXAMINATION OF APPELLANT’S CHARACTER WITNESSES?

Appellant’s Brief at 2.

      Appellant’s issues both pertain to the trial court’s ruling regarding the

scope of cross-examination of the Appellant’s character witnesses.       Upon

review, we conclude that these claims are waived because Appellant failed to

raise a timely objection at trial.



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       The record reflects that after the Commonwealth rested and before

presentation of the defense to the jury, the trial court held a colloquy, out of

hearing of the jury, regarding whether Appellant would testify on his own

behalf.    The trial court conducted the colloquy to ensure that Appellant

understood his right to testify, and that any waiver by Appellant of that right

was voluntary and knowing.           N.T., 12/10/13, at 249-256.   The trial court

explained to Appellant that if he chose to testify, the Commonwealth could

potentially cross-examine him about his prior crimen falsi convictions. Id.2

       In an effort to gauge whether Appellant should testify, Appellant’s

counsel asked the trial court if it would issue an anticipatory ruling as to

whether it would allow the Commonwealth to cross-examine Appellant on his

prior convictions and if so, to issue a ruling as to the scope of such cross-

____________________________________________


2
  See Commonwealth v. Novasak, 606 A.2d 477, 487 (Pa. Super. 1992)
(“Once appellant place[s] his character in issue via his own direct testimony,
the prosecution [is] entitled to exploit the opening on cross-examination and
in closing.     See 42 Pa.C.S.A. § 5918(1).”); Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1263 (Pa. Super. 2014) (while, in general,
evidence of an individual's character or character trait, which includes prior
criminal convictions, is inadmissible to prove that an individual acted in
conformance with that character trait on a particular occasion, such evidence
is admissible as crimen falsi evidence or as rebuttal evidence of good
character; where the defendant presents evidence through his own
testimony that he has a good reputation in the community and was a
peaceful, law-abiding person, this opens the door and allows the
Commonwealth to rebut the defendant’s claims by impeaching the defendant
with the prior convictions during cross-examination); Commonwealth v.
Nolen, 634 A.2d 192,195 (Pa. 1993) (“it is within the discretion of the trial
court to determine the scope and limits of cross-examination”).




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J-A05022-15


examination, in order for Appellant to assess the risk of impeachment if he

elected to testify. Id. The trial court declined to issue a ruling, and took the

matter under advisement. Id. at 256. Appellant then elected not to testify,

although the trial court instructed him that he had until the following

morning to change his mind. Id. at 267-268.

       The trial court then asked Appellant’s counsel whether he intended to

present character witnesses who could be potentially cross-examined with

regard to Appellant’s prior convictions for “robbery, aggravated assault” and

“drug misdemeanors.” Id. at 270.3 Appellant’s counsel responded, “I don’t

have any witnesses to present as character witnesses”, and the proceedings

concluded for the day. Id. at 270.



____________________________________________


3
   See Commonwealth v. Morgan, 739 A.2d 1033, 1035 (Pa. 1999)
(“Where a character witness has testified as to a relevant trait of the
defendant's good character, that witness may be impeached, on credibility
grounds, just like any other witness.”); Commonwealth v. Kuder, 62 A.3d
1038, 1058 (Pa. Super. 2013) (when cross-examining character witnesses
offered by the accused, the Commonwealth may test the witnesses'
knowledge about specific instances of conduct of the accused where those
instances are probative of the traits in question; however, the
Commonwealth's right to cross-examine character witnesses is not
unlimited: the Commonwealth may not cross-examine a character witness
about a defendant's uncharged criminal allegations, or a defendant's arrests
that did not lead to convictions); Commonwealth v. Judd, 897 A.2d 1224,
1232-1233 (Pa. Super. 2006) (upholding trial court ruling that if the
defendant presented character evidence to establish that he was a non-
violent person, the Commonwealth would be allowed to present evidence of
his more recent prior convictions as impeachment of a character witness
through inquiry into specific acts relevant to the character trait in question).



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      The following morning, Appellant’s counsel reiterated to the trial court

that Appellant had chosen not to testify, and therefore the issue as to

whether the Commonwealth could cross-examine Appellant as to his prior

convictions was “a moot argument.” N.T., 12/11/13, at 5.

      The trial court then asked Appellant’s counsel if he nevertheless

wanted a ruling as to whether any character witnesses could be cross-

examined about prior convictions, in the event that Appellant chose to call

character witnesses. Id. at 5. Appellant’s counsel responded “yes”, and the

trial court responded:

      With regard to the use of the prior conviction for the purpose of
      cross-examining a character witness – if [Appellant] puts his
      character at issue that he is a peaceful and law abiding citizen
      then I believe he has interjected into the trial a claim that would
      be unsubstantiated by his record ... he elected to put his
      character for peaceful and law abidingness at issue and at that
      point ... the Commonwealth can utilize any prior criminal history
      in determining whether or not ... the testifying witness was
      aware of his prior criminal history.

N.T., 12/11/13, at 8.

      Appellant’s counsel did not object, accepted the trial court’s ruling, and

stated, “okay Your Honor ... in light of your ruling, we won’t enter any

character evidence into evidence.” Id. at 9.

      The record thus reflects counsel did not raise a specific objection on

the record before the trial court as to the scope of Commonwealth’s cross-

examination of character witnesses relative to Appellant’s prior convictions.

See Commonwealth v. Houck, 102 A.3d 443, 451 (Pa. Super. 2014) (“the


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failure to make a timely and specific objection before the trial court at the

appropriate stage of the proceedings will result in waiver of the issue”). We

therefore conclude that Appellant failed to preserve his evidentiary challenge

for appellate review.

      It is noteworthy that after the trial court offered, sua sponte, to issue a

ruling regarding the cross-examination of character witnesses, Appellant

accepted the trial court’s ruling. See Commonwealth v. Colon, 846 A.2d

747 (Pa. Super. 2004), appeal denied, 582 Pa. 681, 870 A.2d 320 (2005)

(where defense counsel acceded to the trial court’s ruling and did not place

an objection on the record, appellant waived his right to argue this issue);

Commonwealth v. Griffin, 684 A.2d 589 (Pa. Super. 1996) (In order to

preserve an issue for review, a party must make a timely and specific

objection at trial, and failure to object to an offer of evidence at the time the

offer is made, assigning the grounds, constitutes waiver upon appeal of any

ground of complaint against its admission; thus, where the appellant's

counsel did not object to the ruling of the trial court, and in fact acceded to

the judge's ruling, appellant waived his right to argue this issue on appeal)

and compare to Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super.

2013).

      Furthermore, the record reveals that after the Commonwealth rested

on December 10, 2013, Appellant’s counsel stated that he had no character

witnesses to present, such that any ruling by the trial court as to Appellant’s


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non-existent character witnesses was purely hypothetical and advisory in

nature. N.T., 12/10/13, at 270. While it is possible that Appellant may have

procured    such   character    witnesses     in   the   short     interval   after   the

Commonwealth rested on December 10, 2013 and before the presentation of

the defendant’s case on the morning of December 11, 2013, the record

contains no indication that any character witnesses existed. In the absence

of any character witnesses, the trial court’s ruling was advisory.

      We conclude that Appellant waived his objection to the trial court’s

ruling on the scope of cross-examination of character witnesses. However,

had Appellant preserved this issue for appellate review, he would not be

entitled to relief because even if the trial court's ruling was in error, it was

harmless.

      An error is harmless where the uncontradicted evidence of guilt
      is so overwhelming that, by comparison, the error is
      insignificant. When discussing harmless error, we have also
      stated that the Commonwealth can meet its burden of showing
      harmlessness by persuading us the error did not prejudice the
      appellant or did so to a de minimis extent and/or by persuading
      us the properly admitted and uncontradicted evidence was so
      overwhelming and the prejudicial effect of the error so
      insignificant by comparison that the error could not have
      contributed to the verdict.

Commonwealth v. Hoover, 16 A.3d 1148, 1150 (Pa. Super. 2011).

      We recognize that “[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.”

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Commonwealth v. Luther, 463 A.2d 1073 (Pa. Super. 1983). However,

where the evidence of guilt is so overwhelming, a trial court's ruling, which

results in the defendant’s decision to not call character witnesses to testify

regarding the defendant’s reputation for law-abidingness, may constitute

harmless error. Commonwealth v. Kouma, 53 A.3d 760, 771 (Pa. Super.

2012).

        Here, any error by the trial court in – hypothetically - permitting the

Commonwealth to cross-examine character witnesses about Appellant’s prior

convictions, would constitute harmless error given the overwhelming

evidence of Appellant's guilt.   Officer Klingensmith provided an eyewitness

account of the events leading to Appellant’s arrest, testifying credibly that

she personally observed Appellant’s vehicle drive onto the curb at Marshall

and Long Lane and crash into an object on the curb. N.T., 12/10/13, at 93.

Officer Klingensmith pursued Appellant’s vehicle and conducted a traffic

stop.    Id. at 94-100.     When the officer ordered Appellant to exit his

damaged vehicle for his own safety, she noticed that Appellant displayed the

classic signs of intoxication.       Id.   at 101-104.     Officer   Oreskovich

subsequently arrived at the scene and performed field sobriety tests, which

Appellant failed. Id. at 129-135. Officer Desrosiers who also arrived at the

scene testified that after Appellant was arrested, he conducted an inventory

search of the vehicle, which needed to be towed because it was damaged

and leaking gasoline into the road, posing a safety concern. Id. at 146-155.


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Officer Desrosiers testified that, upon conducting an inventory search, he

retrieved from the vehicle marijuana and a loaded handgun with its serial

number obliterated.   Id. at 152-165.       In light of this overwhelming and

uncontradicted evidence of Appellant’s guilt, we conclude that any error in

the trial court's advisory ruling permitting the Commonwealth to cross-

examine potential character witnesses would constitute harmless error.

     For the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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