Opinion
J-A28006-15 No. 1388 EDA 2014
02-17-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. RASHAD BONAPARTE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001491-2013 BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Rashad Bonaparte, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions of robbery, robbery of a motor vehicle, and criminal conspiracy. We affirm.
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3702(a), and 903(c), respectively.
The trial court summarized the relevant facts of this case as follows:
Francisco Bonilla, the complainant, knew Appellant and Antwoine Hunter ("co-defendant") from living in the same neighborhood. On several occasions, he had given both men haircuts in his basement.
On the night of December 7 and into the early morning hours of December 8, 2012, Francisco Bonilla was at Chuckles Bar on the corner of Frankford Avenue and Clearfield Street. He had been playing pool for money and
won about $100 that evening. At [2:00] a.m., when the bar closed, Mr. Bonilla exited and spoke to Appellant and Hunter, who had also been at the bar. Mr. Bonilla owned a green 1998 Pontiac Bonneville, which he had parked outside. Appellant and Hunter asked for a ride, and all three men entered Mr. Bonilla's car. Appellant was seated directly behind the driver's seat, and Hunter was seated in the front passenger seat next to Mr. Bonilla. After driving a few blocks, and upon reaching Clementine Street, a gun was placed against the back of Mr. Bonilla's head.
Appellant and Hunter instructed Mr. Bonilla not to move and to "give up everything." They told him they would hurt him and his mother if he did not do as they said. Hunter began to rummage through Mr. Bonilla's pockets and his belongings. Appellant grabbed Mr. Bonilla's shoulder and continued holding the gun to his head. Mr. Bonilla was finally ordered out of the car, and Appellant drove it away.
Mr. Bonilla walked home and told his mother what had happened, then called the police. In his first conversation with police, Mr. Bonilla did not identify Appellant and Hunter by name. He testified that he did not identify them because he was frightened. Detective Larry Aitken testified that on the night of the robbery, Mr. Bonilla was hesitant and seemed guarded when giving his statement.
After speaking to his father, Francisco Bonilla Sr., about the incident, Mr. Bonilla spoke to his uncle, Detective Orlando Ortiz. Mr. Bonilla was shaking, crying, and very upset when he recounted the story to Detective Ortiz. The next day, Mr. Bonilla and his father went to Southwest Detective Division, where Detective Ortiz works, to talk further. On that day, Mr. Bonilla Jr. identified Appellant and his co-defendant, Antwoine Hunter, as the individuals [who] had robbed him.
Detective Ortiz sent information about the robbery to Detective Don Liebsch, who worked at East Detective Division. ...Mr. Bonilla came in to be interviewed by Detective Liebsch. He admitted that he had not initially identified the robbers to police out of fear. After Mr. Bonilla gave his statement, an arrest warrant was issued
for Appellant. Later that day, Hunter was seen by Francisco Bonilla Sr. entering Chuckles Bar. Hunter was arrested after being identified by Mr. Bonilla Sr. Appellant was subsequently arrested on December 24, 2012.(Trial Court Opinion, filed March 2, 2015, at 2-4) (citations to record omitted).
Mr. Bonilla's green Pontiac Bonneville was recovered on December 13, 2012, in the possession of Appellant's [half]-brother, Troy Todd.
On January 16, 2014, a jury convicted Appellant of robbery, robbery of a motor vehicle, and criminal conspiracy. The court sentenced Appellant on April 7, 2014, to an aggregate term of five and one-half (5½) to eleven (11) years' imprisonment. Appellant timely filed a post-sentence motion on April 14, 2014, which the court denied on April 16, 2014. On April 20, 2014, Appellant timely filed a notice of appeal. The court ordered Appellant on May 5, 2014, to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 13, 2014, Appellant filed a timely Rule 1925(b) statement, and a supplemental statement on January 20, 2015.
Appellant raises the following issues for our review:
WERE THE CONVICTIONS OF ROBBERY (18 PA.C.S.A. 3701(A)(1)(II)), ROBBERY WITH A MOTOR VEHICLE (18 PA.C.S.A. 3702(A)), AND CRIMINAL CONSPIRACY (18 PA.C.S.A. 903)), NOT SUPPORTED BY SUFFICIENT EVIDENCE? WAS THE EVIDENCE SO CONTRADICTORY AND CONFLICTING THAT THE VERDICT WOULD BE BASED ON SPECULATION, AND A NEW TRIAL WARRANTED?
WERE THE ABOVE REFERENCED CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE, PARTICULARLY DUE TO THE CONTRADICTORY AND CONFLICTING NATURE OF THE TESTIMONY?(Appellant's Brief at 6-7).
DID THE ASSISTANT DISTRICT ATTORNEY, IN HIS OPENING AND CLOSING STATEMENTS, MAKE IMPROPER STATEMENTS, REFERENCE MATTERS NOT OF RECORD, GIVE STATEMENTS OF PERSONAL OPINION AND MAKE INFLAMMATORY STATEMENTS, ALL OF WHICH TAINTED THE JURY AND PREJUDICED THE JURY SO THE JURY WAS UNABLE TO RENDER A FAIR VERDICT?
DID [THE COURT] ERR BY NOT CHARGING THE JURY THAT THE IDENTIFICATION OF APPELLANT BY THE ALLEGED VICTIM SHOULD BE RECEIVED WITH CARE AND CAUTION SINCE THE ALLEGED VICTIM INITIALLY SAID HE COULD NOT IDENTIFY APPELLANT?
DID [THE COURT] ERR IN [ITS] CHARGE TO THE JURY WHEN [THE COURT] REFUSED TO CHARGE THE JURY THAT THE INITIAL SIGNED STATEMENT OF THE ALLEGED VICTIM WHERE HE DID NOT IDENTIFY APPELLANT COULD NOT BE USED AS SUBSTANTIVE EVIDENCE? DID THE SUBSEQUENT CORRECT CHARGE GIVEN SEVERAL HOURS INTO THE JURY DELIBERATION CORRECT THE DEFICIENT CHARGE OR DID THE CONFLICTING CHARGES CONFUSE THE JURY?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Charles A. Ehrlich, we conclude Appellant's sufficiency and weight of the evidence issues merit no relief. The trial court's opinion comprehensively discusses and properly disposes of Appellant's questions presented. ( See Trial Court Opinion at 4-8) (finding: (1) Mr. Bonilla testified that Appellant held gun to Mr. Bonilla's head while Mr. Hunter rifled through Mr. Bonilla's pockets, and Appellant and Mr. Hunter ordered Mr. Bonilla not to move and threatened him and his mother; gun held to Mr. Bonilla's head placed him in fear of immediate serious injury or death; Mr. Bonilla testified he was afraid of Appellant and Mr. Hunter; detectives who interviewed Mr. Bonilla testified that he was visibly upset when recounting events; evidence was sufficient for jury to find Appellant guilty of robbery; Appellant and Mr. Hunter were in Mr. Bonilla's car with him when they robbed Mr. Bonilla at gunpoint; Appellant and Mr. Hunter ordered Mr. Bonilla out of car, and Appellant moved to driver's seat and drove Mr. Bonilla's vehicle away; evidence was sufficient to find Appellant guilty of robbery of motor vehicle; Appellant and Mr. Hunter jointly robbed Mr. Bonilla at gunpoint; Appellant and Mr. Hunter acted in concert to take Mr. Bonilla's car and money when Appellant held gun to Mr. Bonilla's head while Mr. Hunter went through Mr. Bonilla's belongings; Mr. Bonilla was able to provide eyewitness testimony that identified Appellant and Mr. Hunter as assailants because Mr. Bonilla had previously met Appellant and Mr. Hunter when Mr. Bonilla had given them haircuts at his home; evidence was sufficient to establish agreement between Appellant and Mr. Hunter to rob Mr. Bonilla; (2) Mr. Bonilla did not immediately identify Appellant and Mr. Hunter to police; Mr. Bonilla later identified both individuals and explained how he had previously failed to identify his assailants because he was afraid; evidence of Mr. Bonilla's initial and subsequent statements to police was presented at trial; jury had opportunity to observe any inconsistencies in Mr. Bonilla's statements/testimony and to consider them during deliberation; Appellant's guilty verdicts were not contrary to evidence; jury chose to credit testimony of Mr. Bonilla, his father, his uncle, and investigating detectives; Appellant's guilty verdicts did not shock one's sense of justice). The record supports the court's decision; therefore, we have no reason to disturb it. Accordingly, we dispose of Appellant's sufficiency and weight of the evidence issues on the basis of the court's opinion.
We note Commonwealth v. Moore , 648 A.2d 331, 334 (Pa.Super. 1994), cited on page 8, paragraph 2, line 2 of the court's opinion, has received negative treatment on grounds unrelated to the proposition cited in the court's opinion.
In his third issue, Appellant argues the assistant district attorney ("ADA") made several inflammatory and inappropriate statements during the Commonwealth's opening and closing arguments. Specifically, during the Commonwealth's opening argument, Appellant claims the ADA referred to Appellant's guilt when the ADA stated it was known who had committed the crime because Appellant's half-brother was found in possession of Mr. Bonilla's stolen vehicle. Appellant alleges the court failed to grant defense counsel's motion for a mistrial or issue a curative instruction. Appellant also contends the ADA inappropriately mentioned during the Commonwealth's opening argument that Mr. Bonilla was so afraid after the robbery that he moved from his home and had to bring the case before a grand jury. Appellant asserts there was no reason to reference this information, as it was not part of the evidence.
Appellant also argues the ADA inappropriately stated during the Commonwealth's closing argument that Mr. Bonilla and his mother had to move out of the neighborhood where Mr. Bonilla was robbed. Appellant insists this statement raised an inference of threats made when there was no indication of any threats to Mr. Bonilla other than at the time of the incident. Appellant claims the ADA also made a statement of personal opinion during the Commonwealth's closing argument when the ADA stated his grandmother would use her common sense and have no trouble finding Appellant guilty. Appellant alleges the court prevented defense counsel from objecting to the ADA's inflammatory statements until after the closing arguments were concluded, which caused the court to fail to issue any timely curative instructions. Appellant maintains the effect of the ADA's improper statements during the Commonwealth's opening and closing arguments tainted the jury and denied Appellant a fair trial. Appellant concludes this Court should grant him a new trial. We disagree.
Instantly, the court addressed this issue as follows:
"A prosecutor should not express his personal opinion about a defendant's guilt. The impropriety of a prosecutor's remark does not, however, always require the granting of a new trial." Commonwealth v. Linder , 425 A.2d 1126, 1128 (Pa.Super. 1981) (internal citations omitted). Although not allowed to express personal opinion, the prosecutor does have a certain amount of
latitude to craft compelling opening and closing statements:
In reviewing the prosecutor's comments, we note that a prosecutor must be free to present his or her arguments with logical force and vigor. Reversible error only exists if the prosecutor has "deliberately attempted to destroy the objectivity of the fact finder" such that the "unavoidable effect" of the inappropriate comments would be to create such bias and hostility toward the defendant that the jury could not render a true verdict. This is a decision for the trial court that will not be disturbed absent an abuse of discretion.
Commonwealth v. Miles , 545 Pa. 500, 511, 681 A.2d 1295, 1300 (1996) (internal citations and quotations omitted).
In the instant case, the jury was instructed that opening statements do not constitute evidence and should not be considered such. In his opening, the prosecutor was outlining pieces of evidence that he believed would show Appellant had committed the crime in question, and compared the case to a "whodunit" story, when Appellant's attorney objected and moved for a mistrial. Following a ruling denying defense counsel's motion, this court again instructed jurors that they will be instructed to determine for themselves the facts of the case after hearing all of the evidence.
Defense counsel also objected to what he believed were the prosecutor's statements of personal opinion during closing. "[A] closing argument must be based upon evidence in the record or reasonable inferences therefrom." Commonwealth v. Ligons , 565 Pa. 417, 430, 773 A.2d 1231, 1238 (2001). While arguments must be based on evidence, "a prosecutor's comments are not evidence. Indeed, the trial court clearly and repeatedly so instructed the jury, which is presumed to follow the court's instructions, on this rule of law." Commonwealth v. Gibson , 547 Pa. 71, 95, 688 A.2d 1152, 1164 (1997) (internal citations omitted). Here, the jury was also instructed that closing statements were not to be
considered evidence. This court also explained to the jury that they were not bound by counsel's recollection of evidence or by counsel's perspective in closing statements.(Trial Court Opinion at 8-10) (citations to record omitted). We accept the court's conclusions. Furthermore, the ADA's statements regarding Mr. Bonilla's fear following the robbery were not deliberate attempts to destroy the objectivity of the fact finder, but to highlight the evidence presented at trial. See Miles , supra. Additionally, the ADA's reference to his own grandmother was merely rhetorical flair used to argue the evidence proved Appellant's guilt. See Commonwealth v. Sampson , 900 A.2d 887, 891 (Pa.Super. 2006) (stating: "Prosecutors are entitled to use rhetorical flair to make their point"). Therefore, the ADA's statements did not "create such bias and hostility toward [Appellant] that the jury could not render a true verdict." See Miles , supra. Accordingly, Appellant's issue merits no relief.
In both opening and closing statements, the prosecutor presented arguments in a persuasive manner, but did not "deliberately attempt to destroy the objectivity" of the jury. Rather, the statements were made as an advocate and did not rise to the level of prosecutorial misconduct. For this reason, these claims are without merit.
In his fourth issue, Appellant argues he was entitled to a jury instruction pursuant to Commonwealth v. Kloiber , 378 Pa. 412, 106 A.2d 820 (1954), that Mr. Bonilla's identification of Appellant should be treated with care and caution, as Mr. Bonilla initially failed to identify Appellant. Appellant contends that on the night of the robbery, Mr. Bonilla told police he was unable to identify his assailants, but over the next few days, Mr. Bonilla identified Appellant as one of the individuals who robbed him. Appellant alleges defense counsel objected when the court refused to issue this instruction. Appellant maintains the court's lack of a "care and caution" instruction could have affected the jury's verdict. Appellant concludes this Court should grant him a new trial. We disagree.
"There is no requirement for the trial judge to instruct the jury pursuant to every request made to the court." Commonwealth v. Newman , 555 A.2d 151, 158-59 (Pa.Super. 1989), appeal denied, 540 Pa. 580, 655 A.2d 512 (1995). "In deciding whether a trial court erred in refusing to give a jury instruction, we must determine whether the court abused its discretion or committed an error of law." Commonwealth v. DeMarco , 570 Pa. 263, 271, 809 A.2d 256, 260-61 (2002).
A jury charge is erroneous only if the charge as a whole is inadequate, unclear, or has a tendency to mislead or confuse, rather than clarify, a material issue. Commonwealth v. Baker , 963 A.2d 495, 507 (Pa.Super. 2008), appeal denied, 606 Pa. 644, 992 A.2d 885 (2010) (citation omitted).
A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions.Id. Moreover,
The trial court may use its own form of expression to explain difficult legal concepts to the jury, as long as the trial court's instruction accurately conveys the law. A verdict will not be set aside if the instructions of the trial
court, taken as a whole, and in context, accurately set forth the applicable law.Commonwealth v. Jones , 858 A.2d 1198, 1201 (Pa.Super. 2004). "Jury instructions must be supported by the evidence of record as instructions regarding matters that are not before the court serve no purpose but to confuse the jury." Commonwealth v. Bruce , 717 A.2d 1033, 1037 (Pa.Super. 1998), appeal denied, 568 Pa. 643, 794 A.2d 359 (1999).
"A Kloiber charge is appropriate where there are special identification concerns: a witness did not have the opportunity to clearly view the defendant, equivocated in his identification of a defendant, or had difficulty making an identification in the past." Commonwealth v. Reid , ___ Pa. ___, 99 A.3d 427, 448 (2014) (citations omitted). Nevertheless, "[w]hen the witness already knows the defendant, this prior familiarity creates an independent basis for the witness's in-court identification of the defendant[.]" Id. (citation and internal quotation marks omitted).
[T]he need for a Kloiber charge focuses on the ability of a witness to identify the defendant. Our Commonwealth's decisional law has long held that prior inconsistent statements based upon fear of endangerment do not equate to a prior failure of ability to identify a defendant. See Commonwealth v. Fisher , 572 Pa. 105, 813 A.2d 761, 770-71 (2002)...(providing no relief to PCRA petitioner based on conclusions Kloiber instruction litigated on direct appeal where witnesses, who knew defendant prior to shooting, failed to identify defendant at pre-trial line-up due to fear that identifying him would endanger her and her family); Commonwealth v. Lee , 401 Pa.Super. 591, 585 A.2d 1084, 1087 (1991) (finding Kloiber instruction inappropriate where fear of identifying
defendant cannot be equated to failure to make identification)[.]Id. at 449 (emphasis in original).
Instantly, in the early morning hours of December 8, 2012, Mr. Bonilla reported a robbery to the police. (N.T. Trial, 1/14/14, at 70). When a police officer arrived at Mr. Bonilla's home, he told the officer that he did not know the two individuals who had robbed him. Id. at 71. Several days later, however, Mr. Bonilla identified Appellant and Mr. Hunter as the assailants and picked them out of a photo array. Id. at 74. When questioned at trial as to why Mr. Bonilla did not identify Appellant and Mr. Hunter on the night of the robbery, Mr. Bonilla testified that he was afraid because the defendants knew where Mr. Bonilla and his mother lived. Id. at 69, 70-71. Thus, Mr. Bonilla's initial failure to identify Appellant arose from a fear of endangerment and did not equate to any inability to identify Appellant as one of the assailants. See Reid , supra at 449. Furthermore, Mr. Bonilla knew Appellant prior to the robbery, which provided an independent basis for Mr. Bonilla's in-court identification of Appellant. (N.T. Trial, 1/14/14, at 53). See Reid , supra at 448. Therefore, the court did not abuse its discretion in failing to give a Kloiber "care and caution" instruction to the jury. See DeMarco , supra. Accordingly, Appellant's issue merits no relief.
In his final issue, Appellant claims Mr. Bonilla's statement to the police immediately following the robbery was that two unknown men robbed Mr. Bonilla after he left the bar and was walking to his car. Appellant alleges Mr. Bonilla told police several days later that he was with Appellant and Mr. Hunter on the night of the robbery, they asked Mr. Bonilla for a ride home, and they robbed him on the way. Appellant contends the court improperly instructed the jury that Mr. Bonilla's first statement could be used only for impeachment purposes, to which defense counsel objected. Appellant avers that several hours after the jury began deliberating, the court corrected its earlier charge and reinstructed the jury that Mr. Bonilla's initial police statement could be used as both impeachment and substantive evidence. Appellant maintains the court's original charge tainted the jury and was not harmless error because we do not know how the jury treated the conflicting jury instructions. Appellant concludes this Court should grant him a new trial. We disagree.
Appellate review of a jury charge is guided by the following principles:
We will not rigidly inspect a jury charge, finding reversible error for every technical inaccuracy...rather we evaluate whether the charge sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision. We must review the charge as a whole. Error cannot be predicated on isolated excerpts of the charge...it is the general effect of the charge that controls. An instruction will be upheld if it clearly, adequately and accurately reflects the law. The trial court may use its own form of expression to explain difficult legal concepts to the jury, as long as the trial court's instruction accurately conveys the law. A verdict will not be set aside if the instructions of the trial court, taken as a whole, and in context, accurately set forth the applicable law.Jones , supra at 1200-01 (internal citations omitted).
In the present case, the court initially instructed the jury on the use of Mr. Bonilla's first statement as follows:
You've heard evidence that a witness, Francisco Bonilla, Jr., made a statement on an earlier occasion that was inconsistent with his present testimony. You may consider this evidence for one purpose only, to help you judge the credibility and weight of the testimony given by the witness at this trial. You may not regard evidence of an earlier inconsistent statement as proof of the truth of anything said in that statement. When you judge the credibility and weight of testimony, you are deciding whether you believe the testimony and how important you think it is.(N.T. Trial, 1/16/14, at 83) (emphasis added). Appellant's defense counsel objected and argued that Mr. Bonilla's first statement to police could be used for impeachment purposes as well as for proof of the truth of the matter asserted. Id. at 90. Thereafter, during deliberations, the court reinstructed the jury on the use of Mr. Bonilla's first statement to the police:
You've heard evidence that a witness, Francisco Bonilla, Jr., made a statement on an earlier occasion that was inconsistent with his present testimony or testimony in court. You may, if you choose, regard this evidence as proof of the truth of anything that the witness said in the earlier statement. You may also consider this evidence to help you judge the credibility and weight of the testimony given by the witness at this trial. When you judge the credibility and weight of testimony, you are deciding whether you believe the testimony and how important you think it is.Id. at 96-97 (emphasis added).
In its opinion, the court addressed Appellant's claim as follows:
The law regarding prior inconsistent statements is established as follows:
[A] prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness's statements.
Commonwealth v. Lively , 530 Pa. 464, 471, 610 A.2d 7, 10 (1992). Mr. Bonilla signed and adopted this statement, therefore meeting the requirements set out in Lively. This court[,] therefore[,] acknowledges that this evidence could have been considered as substantive evidence. Any error that resulted was harmless, however, and does not merit a new trial.
The doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt. Commonwealth v. Allshouse , 614 Pa. 229, 261, 36 A.3d 163, 182 (2012).... Its purpose is premised on the well-settled proposition that a defendant is entitled to a fair trial but not a perfect one. Id. ...[T]he admissibility of evidence rests within the sound discretion of the trial court, and its decision will be reversed only upon a showing that it abused its discretion. Commonwealth v. Chmiel , 585 Pa. 547, 581-82, 889 A.2d 501, 521 (2005) (citing Commonwealth v. Boczkowski , 577 Pa. 421, 846 A.2d 75 (2004)). Further, an erroneous ruling by a trial court on an evidentiary issue does not require the appellate court to grant relief where the error was harmless. Id. (citing Commonwealth v. Young , 561 Pa. 34, 748 A.2d 166, 193 (1999)). Prior appellate rulings on similar facts stand for the proposition that any error here was harmless:
In Commonwealth v. Brady , our Supreme Court held that otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and who is available for cross-examination may be used as substantive evidence of the truth of the matter asserted therein. In
Commonwealth v. Blount , [the Superior] Court held that Brady did not mandate a specific jury instruction that prior inconsistent statements could be used both for impeachment purposes and as substantive evidence—instead, it was enough that the trial court did not instruct the jury that the statements could only be considered for impeachment purposes. Here, unlike Blount , the trial court instructed the jury that the witnesses' prior inconsistent statements could only be used to judge their credibility and not as substantive evidence of truth of the matter asserted therein. This instruction clearly violates Brady , and thus, we conclude that the lower court erred in refusing to give the instruction appellant requested.
Commonwealth v. Bird , 597 A.2d 1169, 1170-71 (Pa.Super. 1991) (internal citations omitted). As in Bird , this court instructed the jury that Mr. Bonilla's prior inconsistent statement to police could only be used to determine credibility, and not as substantive evidence. While the Court in Bird determined this was error, it was found to be harmless:
The next question we must determine is whether this error is constitutionally harmless. In Blount , we opined, albeit in dicta, that even if a trial court errs by instructing, the jury to consider a prior inconsistent statement only for impeachment purposes, the error can be harmless. For this proposition, we cited to Commonwealth v. McMillan , in which the trial court had specifically instructed the jury to consider prior inconsistent statements for credibility purposes only. Despite the error in the instruction, the panel in McMillan stated that the instruction did not prejudice the defendant because the witness admitted making the prior inconsistent statement, he explained that he made the statement because he feared the defendant, and the fact that the prior inconsistent statement was made was uncontested. Thus, the issue properly posed for the jury was whether the witness's in-court explanation for the statement was credible, and not whether the out-of-court statement had been made.
Id. at 1171 (internal citations omitted).
Here, [Mr. Bonilla] also admitted to making the prior inconsistent statement out of fear. There was no question that this statement was made, and Mr. Bonilla was available for cross-examination on the issue as well. The jury had only to determine the witness's credibility, and not whether such a previous statement was made. Under the same circumstances, the Superior Court has held that such error was harmless.
In addition to the foregoing, a traditional harmless error analysis compels the same conclusion. Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (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. [ Chmiel , supra ] (quoting Commonwealth v. Robinson , 554 Pa. 293, 304, 721 A.2d 344, 350 (1998)). A finding of any of these three factors will support a conclusion of harmless error. Id. at [594], 889 A.2d at 529.
If the Court finds that the aforementioned jury instruction was given in error, that error was harmless. Indeed, it seems likely that both the first and third factors are present here. First, the fact that Mr. Bonilla gave an earlier statement to the police in which he did not identify either defendant was presented to the jury. And Mr. Bonilla was available for cross-examination by the defense on this point. Moreover, Appellant and his co-defendant were given ample opportunity to address these inconsistent statements at trial and present them to the jury. Therefore, any prejudice created in not admitting the prior statements as substantive evidence was de minimis.
Even still, the strongest factor here is the third. Francisco Bonilla, the complainant, spoke to detectives a second time to correct his initial statement. He stated that he was
in fear due to threats from Appellant and Hunter, and that was why he had not initially identified them. He subsequently identified both defendants consistently. Both men were well known to Mr. Bonilla prior to the robbery. Shortly after the robbery, Mr. Bonilla's car was located in the possession of Appellant's [half-brother]. Evidence of guilt was so overwhelming that any error in the jury instruction was harmless.(Trial Court Opinion at 16-20) (citations to record omitted). We accept the court's reasoning. Here, the court corrected its instruction during deliberations and properly charged the jury that Mr. Bonilla's initial police statement could also be used for the truth of the matter asserted in it. Thus, the court's initial error was rendered harmless by the modified jury instruction. See Chmiel , supra at 581-82, 889 A.2d at 521. Furthermore, defense counsel failed to object to the court's corrected jury instruction; therefore, any claim regarding the court's modified jury charge is waived. See Commonwealth v. May , 584 Pa. 640, 887 A.2d 750 (2005), cert. denied, 549 U.S. 832, 127 S.Ct. 58, 166 L.Ed.2d 54 (2006) (reiterating absence of specific and contemporaneous objection waives issue on appeal). Therefore, Appellant's final claim merits no relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/17/2016
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