Opinion
1778 EDA 2022 J-S26006-23
01-16-2024
COMMONWEALTH OF PENNSYLVANIA v. DYAMOND GRIER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered March 4, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0007201-2021
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM
STABILE, J.
Appellant Dyamond Grier appeals from the March 4, 2022 judgment of sentence entered in the Court of Common Pleas of Philadelphia County ("trial court"), following her non-jury convictions for possession of instrument of a crime ("PIC") and simple assault. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As summarized by the trial court:
Around 3:15 p.m. on July 27, 2021, complainant, Nate Lowman (hereinafter "Ms. Lowman") was visiting her rental property at 5139 Leiper Street, which she leased to her sister, Appellant. Ms. Lowman was in the process of selling the home and came to take pictures for her realtor. Tension existed between the sisters from Appellant's failure to pay rent. On the day of the incident, Ms. Lowman arrived at the property with her father, Nathan Johnson, and was allowed entry into the residence by Appellant, who was there with her two-year-old daughter.
As Ms. Lowman began taking pictures of the interior, she and Appellant began to argue, then recording each other on their cell phones. At some point, Appellant shoved her phone in her sister's face, prompting Ms. Lowman to "knock the phone out her hands." Appellant then retreated upstairs for "at least every bit of ten minutes" to put her daughter down for a nap.
When Appellant returned downstairs, Mr. Johnson watched her remove a "candle in a solid glass vase" from a hall closet. While Ms. Lowman's back was turned, Appellant suddenly yanked her sister's hair and struck her in the head with the vase, causing Ms. Lowman to fall to the floor and "completely white[] out" for a brief period. A scramble ensued, as Appellant punched and kicked her sister repeatedly in the chest and face. Ms. Lowman was unable to stand and defend herself, as she repeatedly slipped in the pool of her own blood covering the floor. The sisters eventually separated, with Appellant once again retreating upstairs.
Mr. Johnson called the police, and Appellant was arrested. A Domestic Violence Report was completed and pictures were taken. EMTs arrived and transported Ms. Lowman to Jefferson Health System in Frankfort, where she "received 2[4] stitches" to her face, shoulder, and torso, as well as the removal of loose tissue from around her eye. Ms. Lowman continues to experience a "little black thing"-later described as a "fruit fly"-floating around her eye, as well as regular "flashes of light."
Trial Court Opinion, 13/10/22, at 2-3 (record citations and quotation marks omitted).
Eventually, at the non-jury trial, Ms. Lowman testified that she "received 24 stitches" to her face, shoulder, torso, and that she suffered from partial vision obstruction. Ms. Lowman's father, Mr. Johnson, corroborated the events as she recalled them. Ms. Lowman and Appellant share a mother, Danette Grier ("Mother"), whom defense called as a character and fact witness-and whose testimony was later used for impeachment.
At trial during the cross examination of Ms. Lowman, defense asked, "Before you came up to Philadelphia, you had spoken with [Mother] on the phone about how you were going to fight [Appellant], right?" N.T., Trial, 3/4/22, at 48. Commonwealth objected. Appellant argued credibility. Id. The court overruled the objection. Ms. Lowman answered, "I do not recall that conversation with [Mother] because I don't ever recall ever saying to [Mother] I'm going to physically beat her other daughters[.]" Ms. Lowman then was asked, "And you don't remember [Mother] trying to talk you out of coming up to Philadelphia?" Ms. Lowman answered, "[Mother] never tried to talk me out of coming anywhere." Id. at 49.
Later, Appellant attempted to impeach Ms. Lowman's testimony by asking Mother about the phone call. See id. at 74-75 ("[D]id you speak with [Ms. Lowman] about the ongoing issues about the house between [herself] and [Appellant]?"; "And what was [Ms. Lowman] saying to you about coming to Philadelphia?"; "What [did Ms. Lowman] say to you on the phone?"). The Commonwealth objected on hearsay grounds. Appellant argued, "I'm not offering it here for the truth of what she said, I'm offering it for impeachment and bias." Id. at 75. The trial court rejected that argument and sustained the objection.
After hearing all the evidence, the trial court found Appellant guilty of simple assault and PIC and sentenced her to no further penalty. Appellant subsequently moved for a new trial challenging, inter alia, evidentiary rulings, which the trial court denied. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal. Appellant presents a single issue for our review.
The admission of evidence
is within the sound discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law. Thus, our standard of review is very narrow. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.Commonwealth v. Bond, 190 A.3d 664, 667 (Pa. Super. 2018).
Did not the court err by precluding an out of court statement of [Ms. Lowman], as proffered through the testimony of [Mother], in which [Ms. Lowman] contradicted her trial testimony regarding a phone conversation with [Mother], and during which [Ms. Lowman] stated that she was coming to Philadelphia with the intention of fighting [Appellant], as such testimony was admissible as nonhearsay for the purpose of impeaching [Ms. Lowman] with a contradictory statement and was also admissible as hearsay to show the then-existing mental, emotional, or physical condition of Ms. Lowman?
Appellant's Brief at 3.
At the outset, we note that the question presented asserts two bases upon which Appellant claims the trial court erred in precluding Appellant from questioning Mother regarding a phone conversation Appellant had with Mother regarding the victim's reasons for coming to Philadelphia. Specifically, Appellant claims the questions were admissible for impeachment purposes, and for establishing the victim's state of mind. On the latter basis, Appellant argues the questions constituted exceptions to hearsay to demonstrate that the victim was coming to Philadelphia to fight Appellant. Appellant argues this was relevant to her claim she was acting in self-defense. We agree with the Commonwealth that this latter basis now argued as an exception to hearsay, was never raised or preserved during trial. See Pa.R.E. 103(a). Appellant only argued at trial that Mother's statements were not offered for the truth of the matter asserted, but rather they were being offered for "impeachment and bias." As we explained in Commonwealth v. Russell, 209 A.3d 419 (Pa. Super. 2019), appeal denied, 218 A.3d 862 (Pa. 2019):
In order to preserve a claim for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court, or the claim is waived. On appeal, the Superior Court will not consider a claim which was not called to the trial court's attention at a time when any error committed could have been corrected. The princip[al] rationale underlying the waiver rule is that when an error is pointed out to the trial court, the court then has an opportunity to correct the error. By specifically objecting to any obvious error, the trial court can quickly and easily correct the problem and prevent the need for a new trial. Additionally, the appellate court should not be required to waste judicial resources correcting a problem that the trial court could have easily corrected if it had been given the opportunity to avoid the necessity of granting a new trial.Russell, 209 A.3d at 429 (citations and quotation omitted); see Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008) (to preserve issue for appellate purposes, party must make timely and specific objection to ensure trial court has opportunity to correct alleged error); Keffer v. Bob Nolan's Auto Service, Inc., 59 A.3d 621, 645 (Pa. Super. 2012) ("one must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter.") (citations omitted) (emphasis added); see also Pa.R.E. 103(a) (providing that an "[e]rror may not be predicated upon a ruling that admits or excludes evidence unless . . . a timely objection . . . appears of record."). Accordingly, we are unable to review or grant relief on this alternative basis claiming evidentiary error. Appellant failed to assert a state-of-mind exception to hearsay before the trial court. Appellant, however, did preserve her argument that the questions should have been admissible for impeachment purposes. We, therefore, will address that claim.
During Ms. Lowman's cross-examination, defense counsel attempted to ask the following questions that were precluded by the trial court based upon the Commonwealth asserting hearsay objections.
Defense: Before you came to Philadelphia, you had spoken with your mom on the phone about how you were going to fight Ms. Greer, right?
Commonwealth: Object.
Defense: It goes to credibility here.
Court: I'll allow it.
Ms. Lowman: I don't recall that conversation.
Defense: You don't recall talking to your mom -
Ms. Lowman: I do not recall that conversation with my mother, because I don't ever recall ever saying to my mother I'm going to physically beat her other daughters. I have that
much respect for my mom that I would not say that to my mother.
N.T., Trial, 3/4/2022, at 48.
Thereafter, Mother was called to testify by the defense to whom the following questions were asked, objected to by the Commonwealth, and sustained by the trial court.
Defense: And what was Ms. Lowman saying to you about coming to Philadelphia?
Commonwealth: Objection.
Court: Sustained.
Defense: What did Ms. Lowman say to you on the phone?
Commonwealth: Objection.
Court: Sustained.
Defense: On what basis, Your Honor?
Court: Hearsay.
Defense: It's not being offered for the truth. Hearsay is an out-of-court statement which is offered for the truth of the matter asserted. I'm not offering it here for the truth of what she said, I'm offering it for impeachment and bias.
Court: Objection, sustained.Id. at 74-75.
Appellant claims that the trial court abused its discretion in failing to allow Mother's non-hearsay testimony to impeach the victim's prior inconsistent statement. Even if we were to conclude that the trial court committed error, we find that any such error was harmless.
Our Supreme Court has set forth the circumstances in which an error can be deemed harmless based on the holdings of numerous of its prior decisions.
Harmless error exists if the state proves either: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.See Commonwealth v. Fulton, 179 A.3d 475, 493 (Pa. 2018).
The admitted basis upon which the defense sought to pursue the above line of impeachment questioning was to bolster Appellant's claim that her attack on the victim was in self-defense. It was Appellant's apparent theory that the victim had come to Philadelphia to engage in a fight with Appellant. The uncontradicted evidence of record, however, as found by the trial court in this bench-trial, was that Appellant struck the victim from behind on the head without provocation. The use of force upon another person is justifiable only when an actor believes that such force is immediately necessary for the purpose of protecting themself against the use of unlawful force by such other person on the present occasion. See 18 Pa.C.S.A. § 505(a); see also Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001) (Commonwealth failed to disprove self-defense under Section 505(a) in a case of simple assault). Therefore, even if the preclusion of questioning to attempt to establish self-defense through impeachment of the victim was in error, the error would have been harmless because of the uncontradicted evidence that the attack on the victim was unprovoked. Pointedly, there was no immediate necessity for Appellant to protect herself from any unlawful force being directed at her by the victim. Accordingly, Appellant also is not entitled to relief on this evidentiary claim.
Judgment of sentence affirmed.
Judgment Entered.