J-S13023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ABDULHAMID M. ALMANSOURI
Appellant No. 978 WDA 2014
Appeal from the Judgment of Sentence May 22, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016022-2013 CP-02-CR-0016023-2013
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 14, 2015
Appellant, Abdulhamid M. Almansouri, appeals from the May 22, 2014
aggregate judgment of sentence of time served followed by five and one-half
years’ probation after being found guilty of four counts of indecent assault
and three counts of harassment.1 After careful review, we affirm.
The certified record discloses the following relevant factual background
of this case. Appellant was employed as a cook at Providence Point, a
retirement home with assisted living facilities and non-assisted living
facilities. N.T., 4/15/14, at 26-27. Over the span of several months in
2013, Appellant inappropriately touched four women who also worked in ____________________________________________
1 18 Pa.C.S.A. §§ 3126(a)(1) and 2709(a)(1), respectively. J-S13023-15
food services at Providence Point. The first woman, Kathleen Jumblat, who
was a server in the Providence Point deli, testified to two incidents of
nonconsensual touching. In the first, Appellant wrapped his arms around
her waist from behind. Id. at 30. Within weeks of the first incident, when
she was alone in the walk-in cooler getting supplies, Appellant approached
her from behind without announcing himself and touched her breasts while
she had her arms raised to reach a shelf. Id. at 30-31. The second woman,
Candy Steiner, a cook at Providence Point, also testified that Appellant
“grabbed [her] breast[s]” while she was alone in the walk-in cooler. Id. at
51. The third woman, Kimberly Seibel, a server for one of the dining rooms
at Providence Point, testified to multiple incidents. She stated that they
always occurred when she was alone either in the vacant dining room or in
the walk-in coolers. Id. at 67. The first time, Appellant hugged her,
touching her breasts and buttocks, and would not let her go. Id. at 73. A
few days later, Appellant approached her from behind without announcing
himself while she was at her computer workstation and grabbed her breasts.
Id. at 76-77. Weeks later, Appellant approached her in the walk-in cooler
and touched her breasts again. Id. at 80.
The fourth woman, Chalise Schultz, worked for a management
company that managed the Providence Point dining rooms. She testified
that on March 24, 2013, she was sitting at her desk checking e-mails on her
computer when Appellant approached her from behind, reached over her
-2- J-S13023-15
shoulder, and brushed his hand down her body over her breast. Id. at 89.
Although Appellant did not say what he was doing, Schultz thought he was
attempting to reach the tape behind her computer monitor. Id. She
testified that, while his hand did not linger on her body, “the touch was
deliberate.” Id. at 99. Later that day, she told the managing chef at
Providence Point about the incident because her direct supervisor was not
present. Id. at 100. She later reported the incident to the police after she
learned other women had similar experiences with Appellant. Id. at 95.
By two criminal informations filed on December 23, 2013, the
Commonwealth charged Appellant with the aforementioned offenses.
Specifically, the information filed at docket number CP-02-CR0016022-2013
(docket number 16022) charged Appellant with the indecent assault of
Schultz while the information filed at docket number CP-02-CR-0016023-
2013 (docket number 16023) charged Appellant with three counts each of
indecent assault and harassment for the incidents with the three other
women. On December 26, 2013, the Commonwealth filed its Pennsylvania
Rule of Criminal Procedure 582(B)(1)2 notice that it intended to join the two
____________________________________________
2 Rule 582 provides, in relevant part, as follows.
Rule 582. Joinder--Trial of Separate Indictments or Informations
(A) Standards
(Footnote Continued Next Page)
-3- J-S13023-15
cases and try them together. Appellant did not raise a challenge to the
joinder. On April 15, 2014, a two-day jury trial commenced. On April 16,
2014, the jury found Appellant guilty of all four counts of indecent assault.
The trial court then found Appellant guilty of the three summary counts of
harassment. Thereafter, on May 22, 2014, the trial court sentenced
_______________________ (Footnote Continued)
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
(2) Defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.
(B) Procedure
(1) Notice that offenses or defendants charged in separate indictments or informations will be tried together shall be in writing and filed with the clerk of courts. A copy of the notice shall be served on the defendant at or before arraignment.
Pa.R.Crim.P. 582(A)-(B)(1).
-4- J-S13023-15
Appellant to time served followed by five and one-half years’ probation.3
Appellant did not file a post-sentence motion. Appellant filed a timely notice
of appeal on June 16, 2014.4
On appeal, Appellant presents the following two issues for our review.
I. Was the evidence insufficient to prove, beyond a reasonable doubt, that [Appellant] commited [sic] indecent assault, where the evidence ____________________________________________
3 Specifically, the trial court sentenced Appellant to time-served followed by one and one-half years’ probation on the indecent assault conviction at count 1 of docket number 16022. On the conviction of indecent assault at count 2 of docket number 16022, the trial court sentenced Appellant to a term of two years’ probation. On the conviction of indecent assault on docket number 16023, the trial court sentenced Appellant to a term of two years’ probation. All the sentences were imposed to run consecutively. Further, the trial court did not impose any additional penalty for the indecent assault conviction at count 3 of docket number 16022 or for the three convictions of harassment in docket number 16022.
We note there is a discrepancy between the sentencing transcript and the written sentencing order as to Appellant’s sentence for the conviction of indecent assault on docket number 16023. Namely, during the sentencing hearing, the trial court indicated it was imposing two months’ probation on Appellant, but the written sentencing order and guideline sentence form list Appellant’s sentence as two years’ probation. We note that this Court has concluded where there is a conflict between the written sentencing order and the transcript of the sentencing hearing, the written order controls. Commonwealth v. Gordon, 897 A.2d 504, 507 n.7 (Pa. Super. 2006). Accordingly, we calculate Appellant’s aggregate sentence by referring to the written sentencing order. However, this Court has also held that a trial court has the inherent authority to correct clerical mistakes in a written sentencing order when the trial court’s intention to impose a certain sentence as stated orally at the sentencing hearing is clear and unambiguous. Commonwealth v. Borrin, 12 A.3d 466, 473 (Pa. Super. 2011) (en banc). 4 The trial court and Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925.
-5- J-S13023-15
failed to establish that he intentionally touched Schultz for the purpose of arousing sexual desire?
II. Did the trial court err when it instructed the jury to disregard cross[-]examination questioning about Schultz’s pending criminal DUI charges, thus denying him the right to confront the witness against him?
Appellant’s Brief at 7.5
In his first issue, Appellant contests the sufficiency of the evidence the
Commonwealth presented to convict him of the indecent assault of Schultz.
Id. at 16. Specifically, Appellant contends “the Commonwealth failed to
prove that he intentionally touched Schultz’s breast for the purpose of
arousing or gratifying sexual desire.” Id. Instead, he suggests the contact
was “purely incidental and accidental … no more than a non-lingering ‘brush’
with the back of the hand.” Id. at 18.
Our standard of review for challenges to the sufficiency of the evidence
is well settled. “In reviewing the sufficiency of the evidence, we consider
whether the evidence presented at trial, and all reasonable inferences drawn
therefrom, viewed in a light most favorable to the Commonwealth as the
verdict winner, support the jury’s verdict beyond a reasonable doubt.”
Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation
omitted), cert. denied, Patterson v. Pennsylvania, --- S.Ct. ---, 2015 WL ____________________________________________
5 Appellant does not challenge his convictions for three counts of indecent assault and three counts of harassment at docket number 16022.
-6- J-S13023-15
731963 (2015). “The Commonwealth can meet its burden by wholly
circumstantial evidence and any doubt about the defendant’s guilt is to be
resolved by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the
combined circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113
(Pa. Super. 2013) (en banc) (internal quotation marks and citation omitted),
appeal denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must
review “the entire record … and all evidence actually received[.]” Id.
(internal quotation marks and citation omitted). “[T]he trier of fact while
passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.”
Commonwealth v. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (citation
omitted), appeal denied, 99 A.3d 925 (Pa. 2014). “Because evidentiary
sufficiency is a question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119,
126 (Pa. 2013) (citation omitted), cert. denied, Diamond v. Pennsylvania,
135 S. Ct. 145 (2014).
Instantly, Appellant was convicted of indecent assault. A person
commits indecent assault “if the person has indecent contact with the
complainant [or] causes the complainant to have indecent contact with the
person … for the purpose of arousing sexual desire in the person or the
complainant and[] the person does so without the complainant’s consent[.]”
-7- J-S13023-15
18 Pa.C.S.A. § 3126(a)(1). Appellant concedes that the evidence
established he touched Schultz’s breast without her consent. Id. at 15-16.
Appellant’s sole argument is that his contact with Schultz’s breast was
accidental. Id. at 16.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict-winner, the evidence belies Appellant’s contention that the
contact was accidental. Schultz testified that prior to the incident she was
alone in the office, seated at her computer with her back to the doorway of
the office. N.T., 4/15/14, at 89, 94. Schultz stated that she was not aware
anyone else was in the office until the moment Appellant touched her breast.
Id. at 89. She indicated that Appellant reached over her shoulder and
“slipped” his hand “down [her] breast.” Id. She also stated that “the touch
was deliberate” and demonstrated how Appellant touched her to the jury.
Id. at 99. She was startled by the touching and asked Appellant what he
was doing. Id. at 89. Appellant did not verbally respond but started to
reach for the tape that was behind her computer monitor. Id. Schultz
moved the tape to the end of her desk and asked Appellant if he needed
tape. Id. He did not respond, and instead “kind of got mad and stormed
out of the office.” Id. at 90. Schultz reported the incident to the managing
chef later that day. Id. at 100. This evidence was sufficient to enable the
jury to conclude that the contact was intentional and “for the purpose of
arousing sexual desire.” 18 Pa.C.S.A. § 3126(a)(1). Accordingly, the jury
-8- J-S13023-15
was free to infer that Appellant intentionally initiated the nonconsensual
contact with Schultz’s breast to arouse sexual desire in himself or her, and
the totality of the evidence supports the jury’s verdict beyond a reasonable
doubt. See Patterson, supra. As a result, Appellant is not entitled to
relief on his first issue. See Diamond, supra.
In his second issue, Appellant contends that the trial court erred in
excluding evidence of Schultz’s pending DUI charges and instructing the jury
to disregard that evidence. Id.at 19. Appellant maintains he had the right
to introduce evidence of Schultz’s possible bias in the form of self-interest in
the outcome of his trial pursuant to the confrontation clauses of both the
Sixth Amendment of the United States Constitution and Article 1, Section 9
of the Pennsylvania Constitution. Id. at 20-22, citing Commonwealth v.
Evans, 512 A.2d 626, 631 (Pa. 1986).
We begin by noting our well-settled standard for deciding issues of the
admissibility of evidence.
The standard of review for a trial court’s evidentiary rulings is narrow. The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation
omitted), appeal denied, 87 A.3d 319 (Pa. 2014).
-9- J-S13023-15
Before we may reach the merits of this claim, we must address the
Commonwealth’s contention that Appellant has not preserved this issue for
our review. See Commonwealth’s Brief at 11-17. During the cross-
examination of Schultz, the trial court ruled to exclude the evidence that
Schultz had a pending DUI charge at the time she reported the indecent
assault to police as follows.
[Defense counsel]: And then you went to the police when?
[Schultz]: In September.
[Defense counsel]: And the police didn’t contact you, you contacted them?
[Schultz]: Yes.
[Defense counsel]: And when did you go to the police; do you know the exact day?
[Schultz]: I can’t recall.
[Defense counsel]: Does September 23rd sound about right?
[Schultz]: Uh-huh.
[Defense counsel]: I’m not saying this to embarrass you. I have to ask you this question. Did you get in trouble with some criminal charges in August?
[Schultz]: I’m sorry, what?
[Defense counsel]: Did you get in trouble with some criminal charges in August before you went to the police on this incident?
[Schultz]: Yes, but it doesn’t have anything to do with this case.
- 10 - J-S13023-15
[Defense counsel]: But is it pending?
[Schultz]: Yeah, it is.
[Defense counsel]: Thank you.
[Trial court]: I’m going to ask the jury to disregard the last series of questions and issues. [Schultz] is right, it doesn’t have anything to do with this case.
You understand what the rules are?
[Defense counsel]: Yes, ma’am.
[Trial court]: Then I suggest you follow them from now on.
You may step down, Miss Schultz.
N.T., 4/15/14, at 103-104.
After the trial court dismissed the jury following the first day of
testimony, the trial court initiated the following exchange with counsel,
outside of the presence of the jury.
[Trial court]: You understand to impeach you must have a conviction of crimen falsi.
[Defense counsel]: It was not under that basis that I was introducing that evidence.
[Trial court]: What basis was it?
[Defense counsel]: Under Brady [v. Maryland, 373 U.S. 83 (1963)], in any case, it is my good faith belief that I can get into that from the standpoint that there would be some -- basically the Commonwealth would give her some type of benefit for her testimony.
[Trial court]: That’s something you made up.
- 11 - J-S13023-15
[Defense counsel]: I did not make it up, Your Honor.
[Trial court]: No, it is not the law, but you made it up. What is she charged with, murder?
[Defense counsel]: It is a DUI.
[Trial court]: Yeah, that’s a good faith belief. She is going to get the same sentence everybody else gets. Do you think that the Commonwealth is going to start bribing victims to come in and testify? Well, I don’t.
Id. at 110-111.
The trial court thus excluded Schultz’s testimony regarding pending
DUI charges against her. Id. at 104. Pennsylvania Rule of Evidence 103
governs the preservation of a challenge to a ruling to exclude evidence.
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:
…
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record--either before or at trial--a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
Pa.R.E. 103(a)(2)-(b).
- 12 - J-S13023-15
According to Rule 103, Appellant’s challenge was preserved once the
trial court issued its ruling to exclude the evidence after learning of the
substance of the evidence. See Pa.R.E. 103(a)(2). The Commonwealth, in
arguing that Appellant did not preserve this issue, improperly attempts to
place a higher burden of preservation on Appellant than Rule 103
mandates.6 However, Appellant’s challenge was preserved when the trial
court made its definitive ruling to exclude the evidence. See Id. at 103(b).
Accordingly, Appellant was not required to take any further action to
preserve the issue. See Id. at 103(a)(2)-(b). Therefore, we conclude
Appellant’s issue is properly before us.
Turning to the merits of Appellant’s evidentiary challenge, our
Supreme Court, in Evans, held that evidence of pending criminal charges
6 Specifically, the Commonwealth contends that Appellant has not preserved his challenge to the evidentiary ruling because he cited Brady, instead of the applicable case, Evans. Commonwealth’s Brief at 13. Further, the Commonwealth alleges Appellant waived his claims by failing to explain that the rule announced in Evans, applied to victims as well as other witnesses and included possible favorable treatment by the prosecution. Id. at 14-15. The Commonwealth also contends the issue was waived because Appellant did not inform the court that Evans applies to evidence of “potential” bias in addition to evidence of actual bias. The Commonwealth’s argument relies on the discussion that took place after the trial court had ruled to exclude the evidence. At the time of this discussion, the issue had been preserved for appellate review. See Pa.R.E. 103(b). Therefore, we decline to find waiver based on these arguments. Further, even though Appellant cited the incorrect case, he provided the rationale of Evans, i.e., that he sought to show the victim’s self-interest in the outcome of the case. N.T., 4/15/14, at 110. Therefore, the Commonwealth’s claims are without merit.
- 13 - J-S13023-15
against a witness may be introduced to impeach the credibility of the
witness, reasoning as follows.
[W]henever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.
The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury's determination of the case.
Evans, supra at 631-632 (footnote omitted). “The opportunity to impeach
a witness is particularly important when the determination of a defendant’s
guilt or innocence depends on the credibility of the questioned witness.”
Commonwealth v. Mullins, 665 A.2d 1275, 1278 (Pa. Super. 1995).
Accordingly, this Court has held that the rule announced in Evans applies
equally to the impeachment of a victim. Id. However, “[n]ot every denial
of an accused’s right to cross-examine with respect to an unrelated case
requires a new trial. If the error did not control the outcome of the case, it
- 14 - J-S13023-15
will be deemed harmless.” Mullins, supra at 1279, citing Delaware v.
Van Arsdall, 475 U.S. 673, 681 (1986). In conducting a harmless error
analysis, we evaluate “the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prosecution’s case.”
Van Arsdall, supra at 684.
Here, Appellant attempted to cross-examine Schultz, the victim, as to
her potential bias and possible motive to bring accusations against
Appellant. After careful review, we conclude that even if we were to assume
the trial court’s exclusion of the testimony regarding Schultz’s pending DUI
charges was an error under Evans, it was a harmless error.7 The evidence
of pending DUI charges was not strong impeachment. The crime of DUI
does not involve dishonesty, and it did not show Schultz had actual bias.
Appellant did not make an offer of proof of a quid-pro-quo agreement
between Schultz and the district attorney’s office. There was simply no ____________________________________________
7 “This [C]ourt may affirm [the trial court] for any reason, including such reasons not considered by the [trial] court.” Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa. Super. 2013) (citation omitted). Additionally, we “may affirm a judgment based on harmless error even if such an argument is not raised by the parties.” Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012), cert. denied, Allshouse v. Pennsylvania, 133 S. Ct. 2336 (2013).
- 15 - J-S13023-15
evidence that Schultz went to the police with the accusations against
Appellant to gain favorable treatment in her DUI case. Instead, Schultz
explained that she went to the police because she heard other women had
similar experiences with Appellant. N.T., 4/15/14, at 95. Further, the trial
court permitted Appellant to impeach Schultz’s credibility in other ways.
Appellant elicited Schultz’s admission that she did not report the incident
immediately. Id. at 101. Instead, she reported it only in connection with
reporting a yelling match later that day between her and Appellant. Id. at
102. Schultz did not inquire into the status of her report or follow up by
reporting it to her direct supervisor even though she met with her direct
supervisor the day following the incident. Id. Schultz also conceded that
she did not raise the incident again until her unemployment meeting after
she was involuntarily terminated. Id. at 103. In light of the foregoing, we
conclude the error was harmless.
Moreover, Schultz was one of four witnesses who testified to
Appellant’s indecent assaults. Her allegations fit a pattern that was
corroborated by the testimony of the three other victims. Appellant
approached all of the victims at Providence Point when they were alone.
Once isolated, Appellant then made nonconsensual contact with their
breasts. Comparing the corroborating testimony of the other three victims
and the extent of impeachment permitted in the cross-examination of
Schultz with the limited value of the impeachment evidence leads us to
- 16 - J-S13023-15
conclude that the exclusion of the pending DUI charges was harmless error.
See Mullins, supra; Van Arsdall, supra.
Based on the foregoing, we affirm the May 22, 2014 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/14/2015
- 17 -