Com. v. Bethea, K.

• Court: Superior Court of Pennsylvania
• Decided: September 14, 2018
• Docket: 1448 WDA 2017
• Status: Unpublished

Opinion

J-S47010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KYVET BETHEA : : Appellant : No. 1448 WDA 2017

Appeal from the Judgment of Sentence October 3, 2017 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002002-2016

BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 14, 2018

Appellant, Kyvet Bethea, appeals from the judgment of sentence

entered on October 3, 2017, following his jury trial convictions of two counts

each of criminal use of a communication facility and criminal conspiracy to

deliver a controlled substance.1 We affirm.

We briefly summarize the facts and procedural history of this case as

follows. An undercover narcotics agent made numerous purchases of cocaine

from a woman named Tonya Riston in an effort to identify her drug supplier.

When police arrested Riston, she told them about prior drug transactions she

conducted with Appellant and she agreed to testify against him at trial. The

trial court held a three-day jury trial commencing on April 10, 2017. The jury

____________________________________________

1 18 Pa.C.S.A. § 7512(a) and 18 Pa.C.S.A. § 903/35 P.S. § 780-113(a)(30).

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S47010-18

found Appellant guilty of the aforementioned crimes, but deadlocked on two

counts of possession of a controlled substance and two counts of possession

with intent to deliver a controlled substance.2 On October 3, 2017, the trial

court sentenced Appellant to 60 months of restrictive intermediate

punishment, beginning with one year of incarceration, followed by electronic

monitoring for nine months, then probation for five years, consecutive to

Appellant’s incarceration for one count of conspiracy to deliver a controlled

substance. On the other conspiracy to deliver a controlled substance

conviction, the trial court sentenced Appellant to a concurrent term of 10 years

of probation. On the two counts of criminal use of a communications facility,

the trial court sentenced Appellant to a total term of seven years of probation,

concurrent to Appellant’s other sentences. This timely appeal resulted.3 ____________________________________________

2 The Commonwealth retried Appellant on these four charges at a second jury trial on October 18, 2017. The jury found Appellant not guilty of two of the charges and deadlocked on the other two. On November 20, 2017, the Commonwealth nolle prossed the deadlocked charges.

3 On October 4, 2017, Appellant filed a notice of appeal. On October 6, 2017, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on October 27, 2017. On that same day, however, Appellant also filed a motion to amend his concise statement upon receipt of the trial transcripts. On October 31, 2017, the trial court granted relief, allowing Appellant to file an amended concise statement within 20 days of receipt of the transcripts. On December 1, 2017, this Court dismissed Appellant’s appeal for failing to file a docketing statement. Upon Appellant’s application for reconsideration, however, we vacated the dismissal and reinstated Appellant’s appeal. On January 4, 2018, Appellant filed an amended concise statement. The trial court subsequently issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 18, 2018.

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On appeal, Appellant presents the following issues for our review:

1. Whether the trial court abused its discretion by denying the defense’s request to have numerous jurors excused for cause. Instead[,] the trial court pressured some prospective jurors into rehabilitation.

2. Whether the trial court committed reversible error when juror 29 was dismissed for cause although he answered all questions appropriately and was dismissed because the trial judge “went to the heart.”

3. Whether the trial court was in error when it sustained a prosecution objection during cross-examination when Ms. Riston was asked whether she performed controlled buys for the Attorney General.

4. Whether the trial court committed reversible error when the court stated defense counsel “opened the door” to the issue of drugs being found in the home Appellant was arrested in.

5. Whether the trial court committed reversible error when it permitted an agent from the State Police to testify that AFIS is an inmate database of people arrested for crimes.

Appellant’s Brief at 5 (superfluous capitalization omitted).4

Initially, we agree with the trial court’s determination that Appellant

waived his first and third issues, as set forth above. The trial court considered

Appellant’s first issue presented too vague for meaningful review because

Appellant failed to identify which of the over 70 potential jurors were allegedly

pressured or wrongly rehabilitated. See Trial Court Opinion, 1/18/2018, at

3. Moreover, with regard to Appellant’s third appellate issue, the trial court

4 Appellant raised additional issues before the trial court, but he has abandoned them on appeal.

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noted that Appellant’s concise statement, “consisted of an incomplete

sentence.” Id. at 8. The issue, as set forth in Appellant’s concise statement

read, “The trial judge was in error when he sustained a prosecution objection

during cross-examination of Ms. Riston when she was asked.” Concise

Statement, 1/4/2018, at ¶ 8. The trial court stated, it could not “determine

what sustained objection Appellant fe[lt] constituted reversible error.” Trial

Court Opinion, 1/18/2018, at 8.

Upon review, we agree that Appellant waived both of these issues. This

Court has previously determined:

This Court has considered the question of what constitutes a sufficient 1925(b) statement on many occasions, and it is well-established that an appellant's concise statement must properly specify the error to be addressed on appeal. The Rule 1925(b) statement must be specific enough for the trial court to identify and address the issue an appellant wishes to raise on appeal. Further, this Court may find waiver where a concise statement is too vague. When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. A concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all.

In re A.B., 63 A.3d 345, 350 (Pa. Super. 2013). Here, because Appellant

failed to identify the errors complained of on appeal with specificity, the trial

court had to guess as to Appellant’s claims, and, therefore, we agree that

Appellant waived his first and third appellate issues. Moreover, Appellant’s

attempt to be more specific on appeal cannot overcome waiver. See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”). These claims are waived.

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Next, we review all of Appellant’s remaining claims for an abuse of

discretion. See Commonwealth v. Wholaver, 177 A.3d 136, 162 (Pa.

2018) (decision whether to disqualify a juror for cause lies within the sound

discretion of the trial court); see also Commonwealth v. Fischere, 70 A.3d

1270, 1275 (Pa. Super. 2013) (“The admissibility of evidence is at the

discretion of the trial court and only a showing of an abuse of that discretion,

and resulting prejudice, constitutes reversible error.”). In examining

Appellant’s claim that juror 29 was wrongly dismissed for cause, the trial court

first stated that Appellant waived the issue by failing to object. Trial Court

Opinion, 1/18/2018, at 6. In the alternative, the trial court found the claim

was otherwise without merit because the juror expressed an inability to be

fair and impartial regarding police officer testimony after recently watching a

television show about police brutality. Id. at 6-7. Next, the trial court

rejected Appellant’s contention that he did not “open the door” to the

Commonwealth asking questions regarding a marijuana growing operation

located inside Appellant’s residence, which is the subject of a separate criminal

prosecution. Id. at 10-12. The trial court concluded that Appellant “opened

the door,” on cross-examination of one of the investigating officers, when he

asked, “Can you or any member of your team come and tell this jury that they

saw this man in possession of drugs or selling drugs?” Id. at 10. As a result,

the trial court allowed the Commonwealth to ask the officer, on re-direct

examination, questions regarding the marijuana growing operation which

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police discovered at Appellant’s home when arresting him in this matter. Id.

at 11. Finally, with regard to Appellant’s fifth appellate issue, the trial court

noted that although a police officer testified that fingerprints are entered into

a national criminal identification database, the trial court issued a curative

instruction explaining to jurors that the database also contains fingerprints

from government agencies and for employment purposes. Id. at 12. “The

law presumes that the jury will follow the instructions of the court.”

Commonwealth v. Patterson, 180 A.3d 1217, 1228 (Pa. Super. 2018)

(internal citation omitted). Furthermore, the trial court recognized that the

parties stipulated that the only fingerprint identified in the national database

was Riston’s and, therefore, Appellant was not prejudiced. Trial Court

Opinion, 1/18/2018, at 13.

Upon our review, we conclude that there was no abuse of discretion in

this case and that the trial court’s January 18, 2018 opinion meticulously,

thoroughly, and accurately disposes of Appellant’s issues on appeal.

Therefore, we affirm on the basis of the trial court’s opinion and adopt it as

our own. Because we have adopted the trial court’s opinion, we direct the

parties to include the trial court’s opinion in all future filings relating to our

examination of the merits of this appeal, as expressed herein.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/14/2018

-7- ,, Circulated 09/07/2018 02:11 PM

GOMrONWpALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA V; . CRIMIN.AL DIVISION

KYVETI BETHEA NO. 2002�2016 ;� C"') .0 r·,,,:--, c:o r- n, 1925(a) OPINION :.orrtrn � co ;:;:; ;;:, 3? ..,,.... ..... .;,:;.•

= • ;,:;;r,; :�� : Garhart, l,Jalitiaiy _li_,2018 t:..'1 c::' ..::j :Ji: A 0 enteretjj> Oc - - Appellant, .Kyvett Bethea, appeals· from the judgment of sentence � �er@, :i:- C:/, -2017 following his conviction of two counts of criminal conspiracy to deliver a controlled

substLce (cocaine)' (Counts 5 and ,6), and two counts of criminal use of a communication

facili / (Counts 7 and 8): Based on the following, this Court respectfully requests that

App lant's judgment ofsentence be affirmed.

l. BACKGROUND OF THE CASE +lowing a three day jury trial, April I 0, 20 l 7 to. April 12, 2017, Appe JI ant was fo"'.1d gui !ty

of thr foregoing drug related off�nses, which constituted Counts SJ 6, 7, and 8. The JUry w.as dOlldj°':k� on two counts of P-WID (Counts I and 2), and two Counts of possession ( Counts $

andr. On October 3, 2017, the Court sentenced Appellant as folJows: at Count 5 (conjpiracy/PWID), Appellant was sentenced to 60 months of restrictive. intennediate

puni hment, beginning with 1 year of incarceration, followed by electronic monitoring for 9

mon hs, then probation for 5 years, consecutive to Appellant's incarceration; at Count 6 (con piracy/PWIO), Appellantwas sentenced to 10 yearsofprobation, concurrent with Count 5;

I. f . .·.. . ... 2 l&Pia,C.S.A. § 903 and 35 Pa. C:S.A. §780·113(a)(30). · 18 P.a. C.S.A. .§7512{a).

"---···-·· -··--·"············-····· ---·-·-·---------------------------------··---··-·-·--··-··-·--··-·· ·.� .

and a Counts? and. 8 (criminal use ofa communications facility), Appellant was sentenced. to 7

years · f probation, concurrent with Count 5.

October l8,·2oi7, the Commonwealth re-tried the deadlocked counts against defendant at

secojij jury trial. 'O.efeadant was found not guilty of Counts. I and 3 and. the jury was again deadlocked, th.is time as to counts 2 and 4. On November 201h, 2017, the tnal court granted the Co1onwealth' s motion to nail e prosse Counts 2 and 4 of the Criminal Information.

This appeal followed, in which Bethea, througl; his legal counsel, presents the.following

ten iJsues for consideration on appeal: 4 The Trial Court abused its discretion by denying the defendant's request to have numerousjuror's excused for cause. Instead the trial court appeared to pressure some prospective jurors into rehabilitation, · 5 Appellant Kyvet Bethea was denied due process when the Court disallowed reputation evidence of the Commonwealth's key witness, Tonya Riston, pursuant to Pa.R.E. 608(a) and specific instances of conduct of the said Ms. Riston pursuant toPa.R'E. 608(b) . .6 Jurors. Who were dismissed for cause in another courtroom were then brought back to serve on ( sic) jurors in the instant trial. 7 Juror 29 was dismissed for cause after he answered all questions appropriately and was dismissed because the trial judge "went to the heart". 8. The trial judge was in error when he sustained the prosecution objection during cross-examination ofMs, Riston when she was asked. (sic) ·�. The trial judge committed reversible error when asked if Ms. Riston.made.a lot of money and he, sustained the objection. . Io. The. court committed reversible (sic) when ft sustained the prosecutor's. objection during cross examination .as to whether Ms, Riston believes a probation officer can make a probationer's life miserable. 11. The ·trial Judge committed reversible error When he said I. opened the .door because they found drugs in the house Mr. Bethea was arrested in. But in fact, Mr, Bethea was notin possession ofany narcotic as the Jury found. 2. The judge when he permitted. an agent from the state police to testify that a AFIS is an inmate s (sic) database. . 3. When the state trooper was asked

(Ap -ellant's Concise Statement of Matters Complainedof Oil Appeal, January 4, 2018;·pp .. 2:;;3).

For lase of disposition, we have collected Appel)�t's claims into several categories: (A) jury

2 select on issues; (B) issues concerning the direct and cross examination of Commonwealth

witne s, Tonya Riston, and (C)evidentiaty rulings .

. II. DISCUSSION

A� Jury Selection.

all�gat�ons of error at Paragra hs.4, � Arpella�t' s 6, and ·� of his Concise Statement. cencern matters of Jury voir dire, Appellant's first claim is general m nature and alleges the tnal Court

denieb the. defense's request to .have "numerous" jurors excused for cause, and instead "pretur[edJ some prospective jurors into rehabilitation." (Appellant's ConciseStatement, 14). Appj1ant foils to i�e�tify w�ich j�or.s. were all�gedly. pressu.r.ed. We find this sta:ernent so

=: . gen!l as to . prohibit meaningful review of this claim, which we consider waived. See

Hardy, 918 A.2d 766, '<;om v, 771 (J'a..SUI'Cf, 2001)("This. Court will not ac'. as coun el and will. not develop arguments on behalf of an appellant. Moreover, when defects in a

brief[impede our ability to conduct meaningful review, we may dismiss the· appeal entirely or tain find issues to be waived, ") . . .. Over 70 jurors were vetted during the voir dire process. A review of the transcript shows that this}owt dismissed. numerous j�ors. for cause Upon the motion of Appellant's att�mey. However, we . cannot guess which jurors Appellant alleges were wrongly rehabthtated.

AppJllant's first allegation . of error fails .as irnpermissibly vague. In in re A.B.,. 63. A:Jd 345, 350

(Pa. uper, 2013), the Pennsylvania Superior Court held:

[I]t is well-established that "Appellant's concise statement must properly specify the error to be addressed on appeal." Commonwealth v, Hansley, 24 A.3d 410, 41.5· (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 127� (2011) (citation omitted). "[T]he.Rule 1925(b) statement must: be specific enough for ·the trial court· to identify and address the issue an appellant wishes to raise on appeal." Id. (brackets, internal quotation marks, and citation omitted). Further, this Court may find waiver where a concise statement is too vague, Id. "When a court has :to guess what issues an

3 appellant is appealing; that is not enough tor meaningful review:" Commonwealth v. bowling; 778 A.2d 683, 686 (Pa.Super, 2001) (citation omitted). "A Concise Statement which is too vague to allow the court to identify the. issues raised on appeal is the funetional equivalent of no Concise Statement at all," Id. at 68.6. . ,.:87.

63 AJ3rd at 350 Since e. we don't know which jurors were impermissiblypressured into rehabilitation, we cannot rule on this issue. Consequently it.is waived.

j Appellant's next juror- based claim of error; in Paragarph 6 of his Concise Statement, is th t the County recycled jurors in the jury pool who had previously been dismissed for

I caus ill other court. rooms. This claim of error is .meritless. This .standard Erie County

pract ce did not violate Appellant's rights in any way, as he, had an opportunity to

speci ically vet each juror just as the Commonwealth did. Furthermore, just because a juror

may have had .disqualifying issues in one trial, clearly does not translate into necessary

disq alifying issue's in another case. For instance, if a juror knows a lawyer or a witness in. one .ial, h.e may not know the lawyers or witnesses in another trial. Similarly, if a witness

had bad personal experience involving a burglary, she may have no issues with a DlJ1 case;

App. Hant was not prejudiced by the make-up of thejury pool, This issue lacks merit. 1ppellant' s thirdj ury-error claim is that juror 29. was wrongly

a numrr 29 indicated that he would be less likely to believe the testimony of police officer or other law enforcement officer because of his or her job. N.T. (Day 'l) p, 117, The morning

of jlselection; this potential juror viewed a television news program announcing an up+ing E�e �ounty pol'.c� brutality, including an inflammatory video clip of the

egrek1ous pohce violence. This juror was asked:

Jm.� BAUER: . : , [Wjould you be less likely to. believe the testimony of a police officer or othe� law enforcement officer because ofhis or herjob?

4 .. BAUER: Po you have that strong belief?

.·. OR 29: T.he reason why I did that.was thismorning news they said that jury selection was going oh for the police brutality case andI had seen the video and I thought, well, a group of guys that work together, police; officers, they got each other's back, you look one way, r-u look the other; and that's my opinion. ·

ire CQt.JRT: Gotyou, 1pR.oR29: It was based on the video that! had seen. •tt : I .· . BAUER: ... [l\1]y question to you is would you be able to.be fair to them despite the fact you believe some police officer's lie?

OR29:Pm on the fence, depends on the situation, and the ...

COURT: Do they start off-undera cloud? •t•

t COURT: Police offerjs], do you think they're likely to be part of.a fraternity that watches each other's. backs and aren'ttruthful? ·

It .

OR 29: To. an extent. depends if this is the first lnfractton. In my opinion, depends if this is the first infraction with this particular officer or if it's· a group of police officers. ***

·r.· COURT: Attorney Bauer was, worried you can't give him a fair shake because you sort of have a jaundiced feeling about police;

•.··· OR 29: That's possible because:-like I said, I was misled -I was thinking that this is goingto thejury selection for that particular case [police brutality].

L COURT: Didn't work out. That would have gotten you off the case for sure.

'.l�OR 29: Right.

·r· BAUER: wen, I guess I just need to know I would you give the. - would you . basically assume that any police officer, law officer is going to lie wheri he takes the · stand?

JUROR29: No. it depends on the case, individually at.hand. I .. . . . . .. . . MR. BAUER: Let me ask you a question. Would you Ii sten to what the policeman testified to or the agen; would testifyto? 5 JUROR 29: Yes, I'guess .

.· .· 1 .•BA.UER: Would you be. able to judge their credibility the same as you would any other witness?

.. . OR 29:. Yes.

k. . BAUER.: Wouldyou treat them differentlybecause theywere.police.officers?

± OR29:No •

.. . I don't have any. other .· . BAUER: . questions. . 1 NJ.R. RODRJGUEZ: '.No questions, Judge. -r .MR. BAUER: Judge.T would probably motion to strike himfor ta use. I . COURT: . . I'm granting- it As l. said, . sometimes, r goto the heart, . arid I'm hearing Tr· ·him · say the right things - I heard him say the right-things for you, too> but sometimes . I don't. He's excused.

. . R.ODGRIGUES: Number 30.

N.T. (Day l}pp. 117- 120.

we. note that Appellant' s attorney, Mr. Rodriguez, . r·st, faHed to object to this juror's dismrssalfor cause, thereby waiving the present argument. Second, it is apparent that, despite

the liro�'s later. conjcc�re that he could b� fair, th�s juror w�s deeply shaken by his

obsek,ation of the televised newscast of police brutality, The trial Court determined that

desp te the juror's desire to appear fairminded, 'his observation of the acts of police brutality that same morning rendered him emotionally incapable of a fair disposition of the case,

whi.r would' have necessitated the even-handed weighing of police and narcotic agent

testtrony. The scope of voir dire is at the discretion of the trial court. Commonwealth. v, Ellison, 902 I . . . . A2d_ 419, 424 (Pa.2006). "The opportunity to observe the demeanor o r the · prospective.juror and.

·------------------------------ ·------·-·----· the tenor of the juror's answers is indispensable to the judge in determining whether a fair trial

can bl bad in.the community. Claims ofimpartiality by prospectivejurors are subjectto scrutiny +dibility for and reliability as is any testimony, and the judgment of 'the trial court is

nece arily .accorded great weight .;, Commonwealth v. Bachert, 453 A.2d 931, 937 (Pa:1982).

The ennsylvania Superior Court has eschewed reversing decisions of the trial judge concerning

voir · ire in the absence of palpable error.. Ellison, 902 A.2d at 4:H. The test for. determining

whe'.jer a prospective juror s•hould be disqualified is whether h�; is Will ing' and. able. to eliminate . the ihfluence of any scruples and render a verdict according to the evidence. Cordes V·

Asso iates of Internal. Med; 87 A.3d 829, 864 (Pa.Super.jIen bane), appeal denied, 102 A.Jd

986 ·. Pa.2014). This Court's dismissal of Juror29 was based on its first hand observation of the

pros ective juror's.demeanor and credibility leading to a determination thatthis juror would not

have been able tobe fair andimpartial inviewin� the testimony of a police officer. ·There was no

B. TonyaRiston.

Appellant claims, in Paragraphs 5,.8,9, and 1 O of' his Concise Statement, thatthis Court

erre · in its hand ling of'the testimony of Commonwealth Witness, Tonya Riston. Riston testified

that he had bought cocaine from the Appeliarit twice and sold it to another user, who ultimately

tum d out to be undercover narcotics agent .Randall Schirra. Schirra also testified at trial, cojborating Risto°.'' te.stimony. Appellant's first cl�i� is that the Court. "disallowed reputation ev1d�nce ... and specific mstanc�s of c.onduct," pertaimng to Riston, we note that A�pellant's

coulsel thoroughly cross examined Riston and revealed her Jo be the junkie-turned informant

that she is: He asked .her whether She Was a prostitute (no), a stripper (yes), a dealer (not

professional) and an addict (yes). N.T. (Day 2) pp, 136, l36, 132, 129. He also elicited thefact

-------------------------·---······--···-----···- that. t ewitness . suffered . from anxiety, PTSD, depression and mental health issues. N.T. (Day 2}

p.14

Appellant fails to allege in Paragraph 5 of his Concise Statement what other specific acts

of de radation he had hoped to elicit from this witness. We do note. that the Court sustained the

Co I onwealth's objection when Appellant's counsel asked Riston if she was a "criminal." N.T. (Day ·) . p .. l48.. This question .. went beyond . mete. conduct, Riston; ,. s prior . criminal recordand the

fact s e was being shown Jeni ency in exchange for her testimony had alreadybeen elicited. The

term 'criminal" was inflammatory, argumentative, and unduly prejudicial and the objection was

prop rly sustained. In any event, Appellant did not suffer anyharm, since the facts of Riston's

prior criminal record were made known to· the jury.

Appellant's next claim of error, in Paragraph 8 of his Concise Statement, concerns

's testimony, but consists of an incomplete sentence. We cannot, on the face. of

App llant's Statement, determine what sustained objection Appellant feels constituted reversible

error.

Appellant's third claim of error with regard to Riston's testimony is that this Court

st!st ined .an object when Appe11ant's counsel asked her "if Ms, Riston made a .lor of money." (CoJcise Statement,'. 1 9). We cannot find such testimony .. in the transcript, . However, we do find

that . ppellant's counsel asked Ms. Riston, "So you did a lot of things for money." N.T. (Day.Z)

at l 6: This question followed Riston's allowable testimony thatshe used to do Appellant's

horn work "for.money." The objection to the question of whether Riston "did a Jot ofthings for

monly/ was sustained as argumentative. Once again, Appellant's counsel was attempting to

attaJn derogatory labels to the witness; in addition to. eliciting the facts ofher lifestyle. Even if this lvidentiary ruling was incorrect. any error here was harmless. since Appellant's counsel was

8 able t · .demonstrate for the jury that the witness accepted payment for doing Appellant's

home or.k..•3

Finally) Appellant claims this Court erred when it did not allow Appellant's counsel to

ask ,$Ion whether "a probation officer can make a probationer's life miserable." {Concise

State,ent, � 10). Contrary to Appellant's assertion) this Court .did allow this question. The trial

transcr 'pt reflects thefellowing:

Q. [MR, RODRJGUEZJ: Let me ask you this. You're on probation for six years, right?

A [MS. RJSTON]: Yes. Q. You thinl.c a PO can make your. life miserable?

MR: BAUER: Objection,

THE COURT: She can answer, if she can.

A. What?

Q. Do you think a probation officer can make your life miserable?

A. My probation officer is very nice.

MR. RODRlGUEZ: Judge.

THE COURT: Youasked her a.question.

MR. RODGRIGUES: No. I asked her =thai's not the question.

THE COURT: Stop. First of all, you're borderirig on the argumentative. I lether answer if she could. She answer, you'll live with it Move. on: Move on.

N.T: (Day 2) at 140, It appears as though Appellant's counsel is not complaining that he was

prev nted from asking the· desired question, but rather he is complaining that hedid not. getthe

�e�if .d response. Unfortunately, requisitioning perfect answers is beyond this Court's . juns ictron. . . 3 We �ote that Riston testifie_d that she was aft�nJptihg to complete her last year as a inath major al Penn State Behrend When she fell back into-drug use, N.T. (Day 2) at 135. · C, Evidentiary �ulings.

i. .l\..pp�llant counsel.opened the door;

Appellant argues in. that the trial judge committed reversible error when he allowed Jaw

enfotJ ement to testify, in response to Appellant �ciu.nsel's cross exa�ination· qu�stion, that When

the jhce �ested Appellant, he .was in possession of a large manJuana gro mg operation, � � well m�IJUaila for sale. (Conc1s.e Staterne�t; �11} N ..�. (Da� 3) .p.52. Appell�t alleges this rs was error since was not charged with possession of manJuana m this case. 4 Yet 1t was counsel

for Jppellarit, himself, who asked the damning question on cross examination. Counsel for the Al'pf ant opened the. door to this line of testimony when, on cross examination, he asked A$0nl

Randall Schirra, the.following:

Q .. [MR. RODRJGUEZJ: Can you or any member ofyour team come and tellthis jury (hat they saw this. man in possession ofdrugs or selling drugs?

A. [AGENT SCHIRRA]: Yes.

N:T. (Day 3) atp, 34,-35·.

TIIE COURT: Now let's come to sidebar:

·(Whereupon, a sidebar was held).

THE COURT: You just opened a door that's going to hit you in the face because they went there, arrested him, found drugs in the house and that door has been. opened.

MR. RODRIGUEZ: Well; first ofall.tbe guys who were doing surveillance, that's what we're talking about. · ·

THE COURT: Youopened a door:

MR. BAUERl You asked a broad question arid opened that door wide open.

M.R. RODJGUEZ: l'm going to rephrase my question. 4 ApJenant was charged with this offense at Erie County Criminal docket number 1970�20] 6. 10

.. ,,,,......._,_,., __ ,,. , __ MR. BAUER: Too late now.

1'HE COURT: You need to. knowwhat you have done. I wouldn't open any mote doors. Go ahead.

N:T.'. Day 3) at 34-35. Subsequently, once the door had been opened by counsel for Appellant, the prosecutor asked Agent Schirra on re-direct whether, in the- process of arresting Appellant, theyfauncj <;qn.traband or �rugs, Schirra answered. that Appellant was. found with a ma.rijuana

gro,ng opera.hon and marijuana for sale. Counsel for.Appellant's question clearly required .an answer or thejury would have been led to wrongly .believe that Appellant was never found with

any 1rugs. Silence in the face of thiquspend� question would .haye led to. "'1 inference in the negaHVetha:t would have been uatme.rnisleading, and unduly prejudicial to the prosecution.

"Evidence .of other crimes, wrongs, or acts is not admissible to prove the character of ;i

pers n in order to show action in. conformity therewith:" Pa:R.E. 4Q4(b)(l). However, the

One who induces a trial court to Jet down the bars to a field of inquiry that is not competent or relevant to the issues cannot complain if his adversary is also allowed to avail himselfof that opening. the phrase 'opening the door' ... by cross examination involves a waiver: If defendant delves into what would· be objectionable testimony on the part of the Commonwealth, then the Commonwealth can probe further into. the objectionable area.

CoTon�hhLewii, 885 A..2d 5i(Pa.Super. 2005); citing Commonwealth v. Stakley, 243

Pa.tper. 426, 365 Md 1298, 1299-1300(1976). Se� also Commonwealth v Patosky, 440 Pa. per. 535, 656 A.2d 499; 504 (1995), appealdenied, 542 Pa, 664, 668 A.2d 1128 1 (199.5) (holdingwhen defendant delves into what would have been objectionable testimony on

Cq. onwealth's part, Commonwealth can probe into objectionable.areaj; Commonwealth l',

Sey! 294 Pa.Super. 229; 439 A.2d l l75, 1178 (1982) (holding where defendant opens door to

l1 what . therwise might be objectionable testimony, Commonwealth may probe further to ,. determine veracity ofstatement).

· The proper course was to allow an answer to the question posed by Defense counsel.

Acco dingly, this issue. does not.meritrelief

ii. AFIS testimony. (Concise Statement, ,r12)�.

Appellant's next contention of error is that the Court "permitted an. agent from the state

polic to testify that an AF1S is an inmate s database." (Concise Statement,., 12). We are first comf lied to correct Appellant's characterization Of the testimony of Trooper Victoria Weibel, a memter of the Pennsylvania State Police forensic unit. While explaining her process of obtaining. fingebiints from certain evidence obtained in this case, Trooper Weibel referred to sending the prihi out to the AFIS database. The. prosecutor asked .her I() explain what the Af' IS database

was. . he testified as follows:

TROOPER WEIBEL: AFIS stands for automated fingerprint identification system. It is a nationwide data base, essential, of people who have been arrested for crimes. Every time: somebody is arrested, their fingerprints are entered into thatdatabase,

NT. (Day 3) p. 7J. Counsel for Appellant duly objected to this testimony and the prosecutor

a:rer that the AFIS databas� w�s muc� broader than just those who had been arrested for cnrnes. The Court gave a curauve mstruction, as follows:

THE COURT: Ladies and Gentlemen, she described AFIS and said.it was arrest records, but ifs broader than that There. ate other fingerprints. in that data base other than for people. that have. been arrested and I want you to understand that because it would be � otherwise improper and prejudice the defendant. So don't View AFIS. a Just a record of fingerprints of people that have been arrested. I can only say as judge l have been fingerprinted more times in my life for government agencies than l care to remember and I have yet to be arrested, · ·

------------------------------------··-· N.T. ay 3) p. 75-76. Furthermore, the parties stipulated that. the print found on the. box

contai ing cocaine was not the Defenctani's. finger print, but Tonya Ristorr's fingerprint, N.T.

(Day ) p. 77. Thus; the Defendant was not prejudiced by the Trooper's reference to theAFIS, since he only printidentified by the. A.FIS was.Riston's .

. iii. State Trooper's testimony regarding 'finger prints.

Appellant's final assertion of error, is that. «when the state trooper was asked if Mr. llethl .s prints was found and she said she bad no pe�onal knowledge the (sic) Of t�eprints."

(Concise Statement, 1 lJ). We are not clear on why this statement constitutes reversible error, T�o� Weibel te�tified that her jQb was not. to identify the finger prin is, b"t only la lift the ,pnn,from the evidence. She then sent the print to Corporal Richard Pottorf, Jr., a latent print

e.xamrer with the Pennsylvania State Po1ice who, as stipulated, compared the. partial latent

fing�fPrintfound on �lear plastic ceHophane.outside wrapper of a Carn.el Cigarette box and found

that 1l matched the right thumb of Tonya Riston. The Defendant's prints were not found. on the box. .T. (Day3}p. 76-77.·

On Cross examination, Counsel forthe.Appellant asked Trooper Weibel the following:

Q: Do you have any knowledge that any fingerprints from anything you tested in this case

.com s back to Kyvett Bethea?

MR. BAUER: I'm going to object) your Honor, She can'tmake that determination.

TH.E COURT.: You only lifted the latents, .right, where you thought there were latents?

TROOPER WEIBEL: That's correct.

THE COURT.: Do you know the answer to his question?

TROOPERWEIBEL:<.I do not.

- ..... ,.. , ,. _.. ., _ . � ...

N;T. (!Day 3) p. 79. Counsel for the Appellant then turned to the witness and again asked her the J .. .. following:

Q. [MR, RQDGRIGUEZJ: The question is: Does she have arty knowledge, yes or no? Do- you have any knowledge that .any of those prints came back to him?

A. I have no personal knowledge.

Q:.Do youhave any knowledge - now you say personal knowledge. Do you have. · · knowledge whatsoever that any prints came back to him?

MR. BAUER: I'm going to object, Your Honor. She has no personal knowledge, she. can't rely on hearsay to. answer that question.

THE COURT:Tm going to sustain. the objection. She has no knowledge ofany fingerprints. That's all she can testify to.

N:T. ( ay 3) p. 79: Counsel asked Trooper Weibel a question which would have had to. have

been answered by a latent print examiner, not Trooper Weib.el, whose job was only to lift the

prints and sent them to a print examiner. As she truthfully testified, she did not know whose

prints[ere on the box, There is no merit in Appellant's claim of error as to this testimony.

11 . CONCLUSION

Based on the above, this Court respectfully requests that Appellant'a judgment of

sente ce be affirmed. The dlerk of Court is hereby directed to submit the record to the

f>eJJJ1s lvania Superior Court for its review.

---e>.-.:,.. ' ____:]. ·'.,Judge·

cc: Roget Bauer, Esquire �AAG Anthony Rodrigues, Esq.