Com. v. Vasquez, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSE JAVIER VASQUEZ :
:
Appellant : No. 96 EDA 2019
Appeal from the Judgment of Sentence Entered November 30, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007339-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSE JAVIER VASQUEZ :
:
Appellant : No. 102 EDA 2019
Appeal from the Judgment of Sentence Entered November 30, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007340-2016
BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KING, J.: FILED MAY 19, 2020
Appellant, Jose Javier Vasquez, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for two counts of aggravated assault.1 We reverse Appellant’s
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1 18 Pa.C.S.A. § 2702(a).
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convictions, vacate the judgment of sentence, and remand for a new trial.
In its opinion, the trial court accurately set forth the relevant facts of
this case as follows:
In October of 2014, Appellant was living with [J.R.], with
whom he had an on-and-off relationship, dating back to
2010. [J.R.] had a two-year-old daughter…and 11-month-
old twins…, none of whom were Appellant’s daughters.
On Sunday, October 12, 2014, the three girls, having spent
the weekend at [the home of the oldest daughter’s]
grandmother…returned to [J.R.’s] home. [J.R.] fed, bathed,
and played with the two babies, before putting them to bed.
They seemed fine.
At some point during the night, [J.R.] woke up to find
Appellant had left their bed. She left the bedroom and found
the door to the three girls’ bedroom open, which was
unusual, since she closes it to keep [her] two-year-old…from
wandering. [J.R.] then went into the bathroom where she
found Appellant with a rolled up $100 bill and white powder
on the toilet tank lid, which she believed to be heroin.
[Appellant] said he thought someone had been trying to get
in [the house]. They went downstairs and he showed her a
basement door with holes that he had braced. [J.R.] went
back to bed and was awakened when the alarm went off.
The police responded to the home a short time later. [J.R.]
observed additional holes in the door. The police checked
the property, then left. She checked the children and
observed that the twins’ hair seemed to be wet, which struck
her as unusual. When she asked Appellant if he had gone
into the children’s room, he said he had and gave the twins
water because they appeared thirsty.
On October 13, 2014, at around 10:00 AM, [J.R.] checked
on the twins and saw that they were still sleeping, which
was also unusual. Their bottles were not in their bed, but
were downstairs by the sink, which was also unusual. When
she tried to give them their bottle, they wouldn’t wake up.
She attempted to wake them without success.
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[J.R.] asked Appellant to drive them to the hospital. He
suggested splashing water on the children’s faces, but they
did not respond to that. So [J.R.] again asked Appellant to
take them to the hospital. As they prepared to go, the twins
were placed in their car seats and [J.R.] observed Appellant
blowing marijuana smoke in their faces.
When they arrived at the hospital, Appellant did not go in
with [J.R.] and the children, but only came in later. At the
hospital, the twins were diagnosed as under the influence of
drugs, which diagnosis was confirmed by positive drug
screens for opiates and marijuana. Narcan was then
administered to both children. They remained in the
hospital for two days.
When asked how the children might have gotten drugs,
[J.R.] failed to disclose to medical personnel at the hospital
and police that Appellant with whom she lived was a user of
controlled substances. As a result, she was subsequently
charged and entered a plea of guilty in May of 2015 to two
counts of endangering the welfare of a child [(“EWOC”)].
(Trial Court Opinion, filed June 20, 2019, at 2-3) (internal citations omitted).
Procedurally, the Commonwealth charged Appellant at two docket
numbers (one per each victim) with possession of a controlled substance with
the intent to deliver, attempted murder, aggravated assault, recklessly
endangering another person, simple assault, EWOC, and conspiracy.2 Prior to
trial, the Commonwealth moved to preclude the introduction/mention at trial
of a polygraph examination J.R. underwent, as well as any statements J.R.
allegedly made prior to, during, or after the polygraph examination. On June
25, 2018, the court heard argument on the Commonwealth’s motion. During
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2 The Commonwealth later nolle prossed all charges except for aggravated
assault.
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argument, the parties acknowledged the general law of prohibiting the
mention of a polygraph examination or introduction of the results of a
polygraph examination at trial. Nevertheless, Appellant alleged that prior to
the polygraph examination, J.R. admitted to the polygraph examiner that she
had given drugs to the twins. Appellant argued J.R.’s “admission” was
admissible at trial for impeachment purposes. Appellant further agreed that
he would not reference the polygraph examination itself or bring up the results
of the polygraph examination (i.e., whether deception was indicated);
Appellant sought only to admit J.R.’s “admission.” Following argument, the
court granted the Commonwealth’s motion to preclude, stating the polygraph
examination and J.R.’s alleged pre-examination statement were so
“intrinsically intertwined” that it could not separate the pre-examination
statement from the context of the polygraph. (See N.T. Pre-Trial Motion
Hearing, 6/25/18, at 6-11).
The next day, the court revisited its ruling based on the
Commonwealth’s concession that the entire case rested on J.R.’s testimony
implicating Appellant. The court asked the parties if J.R.’s alleged pre-
examination statement could be severed from the context of the polygraph
examination. The Commonwealth disputed that J.R. definitively made the
alleged admission during the pre-examination and suggested it was unclear
from the written polygraph examination report whether J.R. made the alleged
admission in the pre-examination or during the actual polygraph. In any
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event, the Commonwealth maintained J.R.’s alleged statement was
inadmissible per the general law in Pennsylvania disapproving of references
to polygraph examinations at trial. After hearing argument from the parties
for a second time, the court affirmed its prior ruling, again stating that J.R.’s
alleged admission was “sufficiently intertwined” with the polygraph process
such that the statement could not be explored without discussion of the
polygraph. (See N.T. Pre-Trial Motion Hearing, 6/26/18, at 38-52).
On June 27, 2018, Appellant proceeded to a jury trial. 3 The
Commonwealth presented only two witnesses: J.R. and Detective Kimberly
Boston. During her testimony, J.R., inter alia, recounted the events of October
12-13, 2014. Significantly, J.R. denied that she gave the children any drugs.
J.R. admitted that she did not disclose to medical personnel at the hospital or
to police that Appellant was a drug user; and J.R. pled guilty to two counts of
EWOC in connection with that omission. (See N.T. Jury Trial, 6/27/18, at 37-
96). During Detective Boston’s testimony, the Commonwealth introduced,
inter alia, three statements J.R. gave to police during the investigation on
November 5, 2014, November 10, 2014, and November 21, 2014,
respectively. While the statements were inconsistent regarding the extent to
which J.R. implicated Appellant in the crimes, the statements remained
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3Following an appropriate colloquy, the court permitted Appellant to proceed
pro se at trial, with the assistance of stand-by counsel.
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consistent concerning J.R.’s denial of her role in the offenses. (See N.T. Jury
Trial, 6/28/18, at 31-52).
Before the close of the Commonwealth’s case-in-chief, the court held a
charging conference, during which Appellant specifically requested a “crimen
falsi” jury instruction concerning J.R.’s guilty plea to EWOC. The court denied
Appellant’s request, stating EWOC is not inherently a crime of dishonesty,
even though the factual predicate for J.R.’s guilty pleas involved being
dishonest. (See N.T. Jury Trial, 6/27/18, at 150-52).
Appellant testified in his own defense at trial and, inter alia, expressly
denied any role in the offenses. Rather, Appellant maintained he looked out
for the twins’ well-being by driving them to the hospital when J.R. noticed they
were ill and spending the night at the hospital with them. (See N.T. Jury Trial,
6/28/18, at 87-123).
At the conclusion of trial, on June 29, 2018, the jury found Appellant
guilty of two counts of aggravated assault (causes serious bodily injury). The
court sentenced Appellant on November 30, 2018, to consecutive terms of 7½
to 15 years’ imprisonment for each offense. Appellant timely filed post-
sentence motions on December 10, 2018,4 which the court denied on
December 27, 2018. On January 7, 2019, Appellant timely filed separate
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4The docket entries indicate that Appellant filed his post-sentence motions on
December 11, 2018, but the timestamp confirms Appellant timely filed the
post-sentence motions on December 10, 2018.
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notices of appeal at each docket. The court subsequently ordered Appellant
to file concise statements of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Following the grant of an extension of time, Appellant
timely complied. This Court has consolidated the appeals.
Appellant raises the following issues for our review:
DID THE TRIAL COURT ERR AND/OR ABUSE ITS
DISCRETION WHEN IT DENIED THE REQUEST OF
APPELLANT TO ADMIT EVIDENCE OF THE HIGHLY RELEVANT
(AND PRIOR INCONSISTENT) STATEMENT OF THE CO-
DEFENDANT [J.R.]?
DID THE TRIAL COURT ERR AND/OR ABUSE ITS
DISCRETION WHEN IT HELD THAT THE TESTIFYING CO-
DEFENDANT’S CONVICTION FOR ENDANGERING THE
WELFARE OF A CHILD (“EWOC”) DID NOT CONSTITUTE
CRIMEN FALSI WHERE, UNDER THE FACTS OF THIS CASE,
THE EWOC CONVICTION WAS BASED UPON THE FACT THAT
CO-DEFENDANT KNOWINGLY AND INTENTIONALLY LIED TO
MEDICAL CARE PROVIDERS ABOUT HER INFANT
CHILDREN’S INGESTION OF CONTROLLED SUBSTANCES?
IS THE VERDICT OF GUILTY WITH RESPECT TO ALL
CHARGES AGAINST THE WEIGHT OF THE EVIDENCE AND
SO CONTRARY TO THE EVIDENCE THAT IT SHOCKS ONE’S
SENSE OF JUSTICE?
IS THE SENTENCE IMPOSED UNDULY HARSH AND
EXCESSIVE UNDER THE CIRCUMSTANCES OF THIS CASE
AND AS APPLIED TO APPELLANT?
(Appellant’s Brief at 8-9) (internal footnotes omitted).
In his first issue, Appellant argues he sought to introduce at trial a
statement J.R. gave to an investigator prior to being administered a
polygraph examination, in which J.R. admitted that she gave drugs to the
twins. Appellant asserts he sought to admit only the relevant pre-
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examination question and answer and conceded that no reference could be
made to the actual polygraph examination or the results of the polygraph
examination. Appellant emphasizes that J.R. was one of only two
Commonwealth witnesses in this case and that the entire case rested on J.R.’s
testimony implicating Appellant. Appellant acknowledges the general law that
prohibits references to the results of a polygraph examination at trial.
Appellant stresses, however, that relevant statements made during a pre-
polygraph interview are admissible. Appellant submits that statements made
during a polygraph examination are also admissible—Appellant contends only
the results of a polygraph examination are inadmissible. Appellant highlights
the trial court’s concession in its Rule 1925(a) opinion that it erred by
excluding J.R.’s admission, which would have impeached J.R.’s trial testimony
denying that she gave the twins drugs. Appellant concludes the court’s ruling
severely prejudiced his case, and this Court must vacate and remand for a
new trial. We agree Appellant is entitled to a new trial under the facts of this
case.
Our standard of review of a trial court’s admission or exclusion of
evidence is well established:
Admission of evidence is a matter within the sound
discretion of the trial court, and will not be reversed absent
a showing that the trial court clearly abused its discretion.
Not merely an error in judgment, an abuse of discretion
occurs when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by
the evidence on record.
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Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),
cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal
citations and quotation marks omitted). Our scope of review in cases where
the trial court explains the basis for its evidentiary ruling is limited to an
examination of the stated reason. Commonwealth v. Stephens, 74 A.3d
1034, 1037 (Pa.Super. 2013).
Historically, “[t]he rule in Pennsylvania [was] that reference to a lie
detector test or the result thereof which raises inferences concerning the guilt
or innocence of a defendant is inadmissible. This rule was established to
protect the defendant in a criminal trial and it is based on this Court’s refusal
to recognize the scientific accuracy or validity of such tests.”
Commonwealth v. Cain, 471 Pa. 140, 155, 369 A.2d 1234, 1241-42 (1977)
(internal citations omitted). See also Commonwealth v. Hetzel, 822 A.2d
747, 767 (Pa.Super. 2003), appeal denied, 576 Pa. 710, 839 A.2d 350 (2003)
(explaining general rule that due to well-known unreliability of polygraph
tests, our courts uniformly have been reluctant to permit any reference to
polygraph examination at trial).
Nevertheless, this Court has stated:
The polygraph has been acknowledged by the courts of this
Commonwealth to be a valuable tool in the investigative
process. Its use does not per se render a confession
involuntary. A confession is not involuntary merely
because it was made in anticipation of, during, or
following a polygraph examination. See 89 A.L.R.3d
236, and cases there gathered. In Pennsylvania, an
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inculpatory statement made during a pre-test interview was
held admissible in Commonwealth v. Cain, 471 Pa. 140,
1[5]6, 369 A.2d 1234, [1242] (197[7]) [(plurality)]
(Opinion of Eagen, J., in support of affirmance).
Commonwealth v. Smith, 463 A.2d 1113, 1115 (Pa.Super. 1983) (some
internal citations omitted) (emphasis added).
Thus, there have been scenarios where our courts have admitted
statements made before, during, or after a polygraph examination, without
mention or reference to the actual results of the polygraph examination.
See, e.g., Commonwealth v. Schneider, 562 A.2d 868 (Pa.Super. 1989),
appeal denied, 525 Pa. 598, 575 A.2d 564 (1990) (holding court properly
denied motion to suppress confession given to police after polygraph
examination; explaining statement given after being advised that one has
failed lie detector test may be admitted into evidence). See also
Commonwealth v. Santiago, 591 A.2d 1095, 1104 n.15 (Pa.Super. 1991)
(en banc), appeal denied, 529 Pa. 633, 600 A.2d 953 (1991) (“Santiago I”)
(noting trial court did not admit appellant’s second statement to police at trial
“at least in part because the trial court labored under the false apprehension
that such a statement was inadmissible merely because it was made during a
polygraph examination”) (emphasis in original). Compare Commonwealth
v. Brockington, 500 Pa. 216, 220, 455 A.2d 627, 629 (1983) (holding trial
court properly barred admission of results of polygraph examination; results
of polygraph examination are inadmissible even where parties stipulate to
their admission, as stipulation to admissibility cannot enhance reliability of
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results of polygraph examination); Commonwealth v. Handfield, 34 A.3d
187 (Pa.Super. 2011), appeal denied, 617 Pa. 636, 54 A.3d 347 (2012)
(holding court did not err in limiting cross-examination of witness concerning
results of witness’ polygraph examination; specifically, appellant had sought
to ask witness whether condition of witness’ plea agreement was that witness
take and pass polygraph examination, whether witness passed or failed
polygraph examination, and if witness failed polygraph, did witness still reap
benefit of plea agreement); Commonwealth v. Kemp, 410 A.2d 870, 872
(Pa.Super. 1979) (reversing and remanding for new trial where
Commonwealth introduced testimony that its witness took and passed lie
detector test, which raised inference that test certified truth of testimony
implicating accused; “The inference carried the weight of scientific evidence
while in fact that evidence was unreliable”).
Instantly, the trial court addressed this issue in its Rule 1925(a) opinion
as follows:
Here, Appellant alleges that it was error for the [c]ourt to
preclude testimony and cross-examination as to statements
made to a polygraph examiner by Commonwealth witness,
[J.R.], in the course of the pre-interview, prior to the actual
polygraph examination. Specifically, [J.R.] was asked: “Did
you give drugs to these children?” To which she responded:
“Yes.”
After hearing extensive argument, the [c]ourt granted the
Commonwealth’s motion in limine…
* * *
In this case the [c]ourt was focused on the context of the
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statement—given in relation to a polygraph—rather than the
statement itself. This was error. The [c]ourt could and
should have ruled in limine that the witness could be
impeached with her prior statement given in the context of
questioning by a law enforcement officer, but without
mention that the questioning was part of a polygraph
examination. Such a solution would have honored
Pennsylvania law that the results of polygraph
examinations are inadmissible, but statements given in
relation to or during such examinations are admissible.
In sum, while the multiple statements of [J.R.], including in
connection with the polygraph examination, may have
presented some logistical issues in presentation of [J.R.’s]
admission, and Commonwealth rehabilitation with prior
consistent statements, those hurdles were not
insurmountable. Because the admission was so significant
to the defense theory of the case, and because it could have
been introduced without mention of a polygraph exam or
results, it was error to exclude [J.R.’s] admission that she
gave drugs to the children.
(Trial Court Opinion at 6-8) (internal citations omitted) (emphasis in original).
Initially, we observe that the written polygraph examination report does
not make certain whether J.R. answered “yes” to the question “did you give
drugs to these children” during the pre-examination interview or during the
actual polygraph examination. The report appears to support the
Commonwealth’s position that J.R. made the alleged admission during the
actual polygraph examination.5 In either scenario, however, we agree with
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5 The written polygraph examination report indicates two relevant polygraph
questions were posed to J.R.: (1) “Did you give any of those drugs to those
children?” J.R. responded: “Yes”; and (2) “Did you give any of those drugs to
those children on that night?” J.R. responded: “No.” The report further states,
“deception indicated” as to those questions, but does not specify which
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the trial court’s Rule 1925(a) analysis that the court could have admitted J.R.’s
“admission” without reference to the actual polygraph examination or to the
results of the polygraph examination. See Santiago I, supra; Schneider,
supra; Smith, supra.Notably, no other testimony/evidence at trial referenced an admission
by J.R. to giving the twins drugs. While Appellant attempted to impeach J.R.’s
testimony by highlighting J.R.’s prior inconsistent statements to police, those
statements were inconsistent only to the extent of detail in which J.R.
implicated Appellant in the offenses but consistently denied J.R.’s role in the
offenses. Compare Commonwealth v. Santiago, 654 A.2d 1062, 1082
(Pa.Super. 1994) (“Santiago II”), appeal denied, 541 Pa. 651, 664 A.2d 540(1995), cert. denied, 516 U.S. 995, 116 S.Ct. 532, 133 L.Ed.2d 437 (1995)
(explaining statement of Commonwealth witness in pre-polygraph interview,
that witness had not seen defendant with gun prior to victim’s murder, was
contrary to witness’ testimony at appellant’s trial; statement, therefore, was
relevant to enable defense to impeach testimony of key Commonwealth
witness; nevertheless, witness’ pre-polygraph interview statement was
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response was deceptive. (See Exhibit A attached to Commonwealth’s Brief).
The Commonwealth suggests J.R. was “deceptive” in her response to question
1, in which she admitted giving the children drugs. The Commonwealth’s
suggestion in this regard is nothing more than speculation. Even if the
Commonwealth were correct, the results of J.R.’s polygraph examination
would be inadmissible under prevailing law.
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cumulative of other evidence, so prosecution’s failure to disclose witness’ prior
inconsistent pre-polygraph statement did not constitute due process violation
under Brady6). Although we recognize the potential logistical difficulties in
introducing J.R.’s statement and the Commonwealth’s ability to rehabilitate
her, we agree with the trial court’s Rule 1925(a) analysis that such “hurdles
were not insurmountable.” Under these circumstances, the court’s evidentiary
ruling was error and Appellant is entitled to a new trial. See Montalvo,
supra.In his second issue, Appellant argues he sought a ruling that J.R.’s
convictions for EWOC constituted crimen falsi offenses, i.e., crimes involving
dishonesty. Appellant asserts it is undisputed that J.R.’s EWOC convictions
were based on her failure to disclose to medical personnel how her children
were exposed to drugs. Appellant claims the facts of J.R.’s EWOC convictions
involve dishonesty and making false statements. Appellant contends the trial
court improperly analyzed only the statutory elements of the crime of EWOC,
without also analyzing the underlying facts of J.R.’s convictions. Appellant
claims the court’s ruling was particularly egregious where the
Commonwealth’s case hinged on J.R.’s testimony implicating Appellant.
Appellant concludes the court erred by ruling J.R.’s convictions did not
constitute crimen falsi offenses and failing to issue the appropriate jury
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6 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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instruction, and this Court should vacate and remand for a new trial. We
agree the court’s ruling was error.
Our review of this issue implicates the following legal principles:
For the purpose of attacking the credibility of any witness,
evidence that the witness has been convicted of a crime,
whether by verdict, or by plea of guilty or nolo contendere,
shall be admitted if it involved dishonesty or false
statement. Pa.R.E. 609(a). Crimes involving dishonesty or
false statement are commonly referred to as crimen falsi
crimes. Crimen falsi involves the element of falsehood, and
includes everything which has a tendency to injuriously
affect the administration of justice by the introduction of
falsehood and fraud.
When deciding whether a particular offense is crimen falsi,
one must address both the elemental aspects of that offense
and the conduct of the defendant which forms the basis of
the anticipated impeachment. Accordingly, this Court
employs a two-step procedure to determine whether a crime
is crimen falsi. First, we examine the essential elements of
the offense to determine if the crime is inherently crimen
falsi—whether dishonesty or false statement are a
necessary prerequisite to commission of the crime. Second,
if the crime is not inherently crimen falsi, this Court then
inspects the underlying facts that led to the conviction to
determine if dishonesty or false statement facilitated the
commission of the crime. The burden of proof is upon the
party offering the conviction during cross-examination.
Commonwealth v. Davis, 17 A.3d 390, 395 (Pa.Super. 2011), appeal
denied, 611 Pa. 678, 29 A.3d 371 (2011) (most internal citations and
quotation marks omitted) (emphasis in original).
The Crimes Code defined the offense of EWOC during the relevant
timeframe as follows:
§ 4304. Endangering welfare of children
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(a) Offense defined.—
(1) A parent, guardian or other person supervising the
welfare of a child under 18 years of age, or a person that
employs or supervises such a person, commits an offense if
[she] knowingly endangers the welfare of the child by
violating a duty of care, protection or support.
18 Pa.C.S.A. § 4303(a)(1) (effective January 29, 2007 to August 27, 2017).
Instantly, we initially note that the jury heard about J.R.’s EWOC
convictions and the factual basis for her convictions at various points
throughout trial. Thus, it is undisputed that the court permitted evidence of
J.R.’s EWOC convictions at trial. When Appellant specifically requested a
“crimen falsi” jury instruction at the charging conference, however, the court
declined Appellant’s request because the statutory elements of EWOC are not
“inherently” crimen falsi. Indeed, in its Rule 1925(a) opinion, the court stated:
“Because there is no element of dishonesty or false statement set forth in the
statute, the crime of [EWOC] is not a crimen falsi.” (Trial Court Opinion at 9).
Nevertheless, the trial court failed to conduct the second part of the two-
step analysis, namely, an inspection of “the underlying facts that led to the
conviction to determine if dishonesty or false statement facilitated the
commission of the crime.” See Davis, supra. The record makes clear the
factual basis for J.R.’s EWOC convictions involved dishonesty or a false
statement to medical personnel and police concerning how the twins might
have been exposed to drugs. Consequently, the trial court improperly ruled
that J.R.’s EWOC convictions did not constitute crimen falsi offenses and
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should have issued the appropriate jury instruction.7 See Commonwealth
v. Cole, 2020 WL 400234, 2020 PA Super 12 (filed Jan. 24, 2020) (explaining
that in Pennsylvania, witness may be impeached by prior conviction if crime
involved dishonesty or false statement; appellant was entitled to jury
instruction regarding relevancy of witness’ crimen falsi convictions, and how
jury could utilize that evidence in assessing her credibility). Accordingly, we
reverse Appellant’s convictions, vacate the judgment of sentence, and remand
for a new trial.8
Convictions reversed. Judgment of sentence vacated. Case remanded
for new trial. Jurisdiction is relinquished.
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7 The Commonwealth concedes the trial court’s failure to classify J.R.’s EWOC
convictions as crimen falsi offenses was improper (see Commonwealth’s Brief
at 18), but insists the error was harmless because the jury heard about J.R.’s
convictions. Because we have already decided this case warrants a new trial
based on our disposition of issue one, we do not need to consider whether the
trial court’s error was harmless. Instead, we offer the analysis of Appellant’s
second issue as guidance for the trial court upon remand so that it does not
make the same mistake for a second time.
8 Based on our disposition, we do not need to reach Appellant’s third issue
challenging the weight of the evidence or fourth issue challenging the
discretionary aspects of sentencing.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2020
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