Com. v. Brunner, J. ( 2019 )

J-S17008-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOSEPH BRUNNER,
Appellant No. 806 EDA 2018
Appeal from the Judgment of Sentence Entered July 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003741-2015
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 05, 2019
Appellant, Joseph Brunner, appeals nunc pro tunc from the judgment of
sentence of an aggregate term of 12-25 years’ incarceration, followed by 10
years’ probation, imposed after he was convicted of aggravated assault and
numerous other offenses. We affirm.
The trial court summarized the procedural and factual history of this
case as follows:
PROCEDURAL HISTORY
On November 19, 2014, [Appellant] was arrested and
charged with, inter alia, [a]ggravated [a]ssault, [c]onspiracy to
[c]ommit [r]obbery, [p]ossessing an [i]nstrument of [c]rime,
[r]obbery, and [b]urglary. [Appellant’s] waiver trial took place on
April 14, 2016, resulting in [Appellant’s] conviction on the stated
charges. On July 21, 2016, [Appellant] was sentenced to an
aggregate sentence of 12-25 years[’] state incarceration followed
by 10 years of probation.
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On August 2, 2016, [Appellant] filed his [n]otice of [a]ppeal
to the Superior Court. On August 15, 2016, the [c]ourt filed and
served on [Appellant] an [o]rder pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, directing [Appellant]
to file and serve a [s]tatement of [e]rrors [c]omplained of on
[a]ppeal within 21 days of the [c]ourt’s [o]rder. On October 31,
2016, [Appellant’s] appeal was dismissed for failure to comply
with Pa.R.A.P. 3517.[1]
On February 3, 2017, [Appellant] filed a Post[]Conviction
Relief Act [(PCRA), 42 Pa.C.S. §§ 9541-9546,] petition. On
October 12, 2017, [Appellant] filed an amended PCRA petition.
On March 13, 2018, the [c]ourt reinstated [Appellant’s] appeal
rights by agreement of counsel. On March 15, 2018, [Appellant]
filed his [n]otice of [a]ppeal to the Superior Court. On April 23,
2018, Stephen Thomas O’Hanlon was appointed as defense
counsel. On June 1, 2018, the [c]ourt filed and served on
[Appellant] an [o]rder pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, directing [Appellant]
to file and serve a [s]tatement of [e]rrors [c]omplained of on
[a]ppeal within 21 days of the [c]ourt’s [o]rder. On June 17,
2017, [Appellant] filed his statement of matters complained of on
appeal….
EVIDENCE AT TRIAL
At trial, Ms. Bonita Yates testified that[,] on November 14,
2014, she was 52 years old and lived at 546 South 52nd Street[]
in West Philadelphia, Pennsylvania. On the evening of November
13, 2014, Ms. Yates was at home with John Cox, drinking alcohol
while she was on multiple medications for her bipolar [disorder
and] schizophrenia. Ms. Yates repeatedly testified that she has
no memory of the events that led to the immediate complaint
because she blacked out as a result of her drug and alcohol
consumption. Ms. Yates does not remember seeing [Appellant]
nor having the police come to her home in the early hours of
November 14.
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1 Pa.R.A.P. 3517 (“Whenever a notice of appeal to the Superior Court is filed,
the Prothonotary shall send a docketing statement form which shall be
completed and returned within ten (10) days in order that the Court shall be
able to more efficiently and expeditiously administer the scheduling of
argument and submission of cases on appeal. Failure to file a docketing
statement may result in dismissal of the appeal.”).
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Ms. Yates testified that she does not remember giving a
statement to police at 6:15 A.M. on November 14, 2014[,] at
Southwest Detectives, located at 55th and Pine Street[] in
Philadelphia. Because Ms. Yates testified that she does not
remember giving any statement to police, her statement was read
into the record as a prior inconsistent statement. Ms. Yates’[s]
statement details how [Appellant], an old friend of Ms. Yates,
came to her home with an accomplice and tried to rob her. Ms.
Yates’[s] statement alleged that [Appellant] forced open Ms.
Yates’[s] door and his accomplice shot Mr. Cox in the arm. The
written statement included Ms. Yates’[s] name, date of birth, and
her handwritten signature at the bottom, which Ms. Yates
acknowledged as authentic. Ms. Yates testified that she attended
a preliminary hearing on April 9, 2015, where she also testified
that she did not remember anything from the night in question.
Detective Mary Kuchinsky testified that Ms. Yates came in
to give a statement around 6 A.M. on November 14, 2014. The
detective testified, “I ask them, and from my observations, if
somebody’s intoxicated or under the influence of drugs, I would
never take an interview from them.” Detective Kuchinsky testified
that Ms. Yates was coherent and did not appear to be sedated or
on medication at the time of the interview. Detective Kuchinsky
identified Ms. Yates’[s] statement detailing the robbery and
shooting by [Appellant] and his accomplice, which she had
recorded. Detective Kuchinsky testified that Ms. Yates did[ not]
read very well, so she read the statement back to Ms. Yates, who
confirmed the accuracy of the statement at the time it was made.
Philadelphia Police Officer Jacob Hollis testified that he
received a radio call for a shooting at 546 South 52 nd Street
around 4:45 A.M. on November 14, 2014. Officer Hollis testified
that[,] when he arrived at the scene[,] he saw that John Cox was
shot in the right elbow, and that there was blood on the apartment
door from Mr. Cox’s wound. Officer Hollis testified, “The door
frame looked like it was forced open.” Philadelphia Detective
Dennis Slobodian then testified that he went to the hospital and
met with Mr. Cox who was being treated for a gunshot wound.
Detective Slobodian also went to Ms. Yates’[s] home and
discovered a bullet hole through the rear door.
Trial Court Opinion (TCO), 11/6/2018, at 1-4 (internal citations and footnotes
omitted).
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Presently, Appellant raises a single issue for our review:
Did the trial court err in overruling Appellant’s counsel’s objection
and allowing the Commonwealth to read into the [r]ecord Bonita
Yates’[s] statement when the [c]ourt made an assessment as to
Ms. Yates’[s] lack of memory, when Ms. Yates should not have
been subject to Brady/Lively[2] impeachment as a result, and
when Appellant suffered irreparable harm when the statement
was read in because Appellant was unable to properly confront
this key witness?
Appellant’s Brief at 4.
We acknowledge the following:
Our courts long have permitted non-party witnesses to be cross-
examined on prior statements they have made when those
statements contradict their in-court testimony. Such statements,
known as prior inconsistent statements, are admissible for
impeachment purposes. Brady, … 507 A.2d [at] 68 …; P[a].R.E.
613(a). Further, a prior inconsistent statement may be offered
not only to impeach a witness, but also as substantive evidence if
it meets additional requirements of reliability. Lively, … 610 A.2d
[at] 9-10…; P[a].R.E. 803.1.[3] The test is a two-part inquiry: 1)
whether the statement is given under reliable circumstances; and
2) whether the declarant is available for cross-examination.
Commonwealth v. Brewington, 740 A.2d 247, 254 (Pa. Super.
1999), appeal denied, … 758 A.2d 660 ([Pa.] 2000). With respect
to the first prong, that the statement is given under reliable
circumstances, our [S]upreme [C]ourt has deemed reliable only
certain statements; among them is a statement that is “reduced
to a writing and signed and adopted by the witness.” Lively, …
610 A.2d at 10. See also P[a].R.E. 803.1(1). With respect to the
second prong, cross-examination, the inconsistent statement
itself must be the subject of the cross-examination in order to
satisfy the test. Commonwealth v. Romero, … 722 A.2d 1014,
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2Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992); Commonwealth v.
Brady, 507 A.2d 66 (Pa. 1986).
3 The official comment to Pa.R.E. 803.1(1) sets forth that the rule “is
consistent with prior Pennsylvania case law[,]” specifically naming Brady and
Lively. Comment to Pa.R.E. 803.1(1).
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1017 ([Pa.] 1999), cert. denied, 528 U.S. 952, 120 S.Ct. 376, 145
L.Ed.2d 293 (1999).3
3 In Romero, our [S]upreme [C]ourt held that the cross-
examination prong was not satisfied because the witness in
that case, Barbosa, refused to answer any questions about
his prior statement and was held in contempt of court as a
result. The Romero [C]ourt found Barbosa’s refusal to
explain the statement foreclosed the defendant’s right to
confront witnesses against him….
Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa. Super. 2002).
Here, the trial court concluded that Ms. Yates’s statement satisfied the
above-stated, two-prong test. It reasoned:
At trial, Ms. Yates testified [that] she couldn’t remember giving
the statement to police, making her testimony inconsistent with
the prior [statement] to police. Her inconsistent statement is
admissible as substantive evidence because it meets the reliability
and cross-examination requirements. As to the first prong of the
test, Ms. Yates’[s] statement is reliable because it was voluntarily
given and recorded by a Philadelphia detective, who credibly
testified to the legitimacy of the statement. Ms. Yates adopted
that statement at the time she made it by affixing her signature
to the bottom. Further, the content of Ms. Yates’[s] statement,
such as Appellant’s forced entry and shooting, is corroborated by
the testimony of the officers who investigated the scene of the
crime. Likewise, as to the second prong, the declarant’s
availability for cross-examination, Ms. Yates was available for
cross-examination. At trial, Ms. Yates was examined on direct
about the contents of her statement and defense counsel was
afforded an opportunity to cross-examine her. Ms. Yates[’s]
statement was therefore admissible as substantive evidence
under the Brady/Lively rule.
TCO at 5-6.
Appellant, however, argues that Ms. Yates’s statement could not be used
as substantive evidence because “there was a ruling that [she] was credible
when she testified that she did not remember the underlying facts and her
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statement to police.” Appellant’s Brief at 11 (referring to N.T. Trial,
4/14/2016, at 81-82). Thus, Appellant says Ms. Yates “could not be properly
subjected to Brady/Lively impeachment because there was never a judicial
determination that [she] was not being frank or truthful. In fact, … there was
a determination that [Ms. Yates] was being frank and truthful.” Id. Moreover,
Appellant contends that he “was denied his Constitutional Confrontation rights
because he was effectively unable to cross-examine [Ms. Yates] on her prior
statement, the only substantive evidence against Appellant.” Id. at 12
(citation omitted).
We reject Appellant’s arguments. First, we disagree with Appellant that
the trial court found Ms. Yates’s memory loss to be credible. Rather, the
following occurred at trial:
[The Commonwealth]: Your Honor, I mean, if you’re going to pick
a victim to rob, [Appellant] picked the perfect victim. He was
hoping that if it ever did come to court, which he probably wasn’t
counting on, he was hoping that this is exactly the dialogue that
would be taking place, that Ms. Bonita Yates would be [] being
bashed for who she is.
[The court]: She seems all right today. I mean, she came in here,
she sat there, she hasn’t been drinking. And if she’s taking meds,
she’s not overdoing it. But she seems okay today.
So it comes down to, can I believe the detective when the
detective says she was okay that night. She came in and we
talked and she was fine. Because the only evidence that she was
drinking, … the first cop on the scene, he doesn’t say anything
about drinking or drugs, either; does he?
[Appellant’s attorney]: I don’t think he asked her.
[The court]: So the only one who says that she was drinking is
her as an explanation for why she doesn’t remember anything
now.
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[The Commonwealth]: Correct.
***
[The Court]: [] Count one is aggravated assault, I’m convinced
[Appellant] did it, along with the conspiracy with somebody else
unidentified. Simply because I believe the detective. The
detective said she spoke to the complainant that night and she
gave a lucid account of what took place.
I saw [Ms. Yates] in court today. I mean, she’s not – there’s no
reason to doubt her today. She probably was intimidated, she
lives in the neighborhood, she’s concerned. [Appellant] was on
the phone telling people to go out and talk to her, talk to Cox. [4]
[Appellant’s] not going to benefit from that. I’m not going to allow
him to benefit from that. She’s just afraid when she comes into
court. But that night, having just been robbed, she told the
detective what happened.
N.T. at 76-77, 81-82. Rather than crediting Ms. Yates’s memory loss, the trial
court found that Ms. Yates was intimidated and afraid of coming to court, and
it declared that it would not let Appellant benefit from directing people to
approach her about the case. Further, the trial court accepted the testimony
of the detective, who stated that Ms. Yates seemed coherent during the
interview and did not appear to be under the influence at the time. Thus, it
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4 For context, the Commonwealth admitted into evidence prison phone calls
made by Appellant, where he was ostensibly instructing another person to talk
to Ms. Yates and Mr. Cox before trial. See N.T. at 66-68; Commonwealth’s
Exhibit 4; see also Commonwealth’s Brief at 3-4. Further, Detective
Kuchinsky — who interviewed Ms. Yates on the night in question — testified
that Ms. Yates told her during the interview, “I’m scared for my family. Now
I’m going to have to move. He know[s] where my mom lives.” N.T. at 57;
see also Commonwealth’s Exhibit 1.
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did not accept Ms. Yates’s claim that she had been drinking on the night in
question, and consequently could not remember.5
____________________________________________
5 Appellant does not argue that, even if the trial court had discredited Ms.
Yates’s memory loss, her prior statement to police fails to qualify as a prior
inconsistent statement under the Brady/Lively rule and Pa.R.E. 803.1(1).
Thus, he has waived this argument. Lackner v. Glosser, 892 A.2d 21, 29-
30 (Pa. Super. 2006) (“[A]rguments which are not appropriately developed
are waived. Arguments not appropriately developed include those where the
party has failed to cite any authority in support of a contention.”) (citations
omitted).
Nevertheless, we point out that — since the time of Appellant’s trial in 2016
— Pa.R.E. 803.1 has been amended to include a provision specifically for a
prior statement by a declarant-witness who claims an inability to remember
the subject matter of his or her statement, and the court finds the claimed
inability to remember to be incredible. See Pa.R.E. 803.1(4) (effective April
1, 2017). The comment to that rule provides, in pertinent part:
The purpose of this hearsay exception is to protect against the
“turncoat witness” who once provided a statement, but now seeks
to deprive the use of this evidence at trial. It is intended to permit
the admission of a prior statement given under demonstrably
reliable and trustworthy circumstances, see, e.g.,
Commonwealth v. Hanible, 30 A.3d 426, 445 n.15 (Pa. 2011),
when the declarant-witness feigns memory loss about the subject
matter of the statement.
In Hanible, our Supreme Court determined that the defendant’s counsel was
not ineffective for failing to object to the introduction of a witness’s prior
inconsistent statement under Pa.R.E. 803.1(1) where, among other things,
the witness later claimed at a murder trial that the police forced him to make
and sign the prior statement, and that he actually knew nothing about the
murders. See Hanible, 30 A.3d at 436, 445-46. Similar to the witness in
Hanible, Ms. Yates did not dispute that she made the statement and did not
deny its contents, but represented that she could not recall the incident
because she had been drinking. Thus, even though Ms. Yates did not deny
the contents of her prior statement at trial, we would likewise deem Ms.
Yates’s prior statement admissible under Pa.R.E. 803.1(1).
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Second, we determine that Appellant was not denied his Constitutional
Confrontation rights because he “was effectively unable to cross-examine [Ms.
Yates] on her prior statement….” See Appellant’s Brief at 12 (citation
omitted). At the outset, we agree with the Commonwealth that Appellant has
waived this argument by failing to cite to any authority in support. See
Lackner, supra; see also Commonwealth’s Brief at 7 (arguing waiver).
Notwithstanding, even if not waived, no relief would be due on this basis. In
Carmody, we rejected a similar argument, ascertaining that a previously
signed and adopted written statement could be admitted as substantive
evidence even though the complainant in that case later testified that her
statement was unreliable because she was intoxicated at the time she gave
it. See Carmody, 799 A.2d at 145, 148-49. In her written statement given
to police on the night in question, that complainant described an assault in
detail, but later at a preliminary hearing represented that she “had been
drinking on the night of the incident and had a ‘blackout.’ As a result, she
could not remember anything that happened on that night. Further, she
claimed that nothing she said or wrote on that date was reliable.” Id. at 145.
On appeal, this Court rejected the position that the complainant’s “blackout
precluded any meaningful opportunity to cross-examine her on the veracity of
her written statement.” Id. at 148. Instead, we observed that both parties
had the opportunity to question the complainant as to why she said one thing
on the night in question and something entirely different at the preliminary
hearing. See id. at 149. We stated that “[t]he substance of [the
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complainant’s] answers does not dictate whether she was subject to cross-
examination. The question is whether she testified about the prior statement,
not what she responded when she testified.” Id. (emphasis in original).
Accordingly, this Court concluded that the complainant’s written statement
was admissible as substantive evidence under the Brady/Lively rule. Id.As the Commonwealth points out, like the defendant in Carmody,
Appellant had the chance to cross-examine Ms. Yates “about a variety of
topics, including the medications she was taking on the date in question, her
alcohol use, and whether her illness ever caused her to hallucinate. Had
[Appellant] chosen, he also could have elicited more information about her
claimed memory loss or other susceptibilities.” Commonwealth’s Brief at 8-9
(citations omitted). We agree. Accordingly, we would conclude that the trial
court did not improperly admit Ms. Yates’s statement as substantive evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/19
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