Com. v. Diliberto, D.

• Court: Superior Court of Pennsylvania
• Decided: June 1, 2018
• Docket: 2477 EDA 2017
• Status: Unpublished

Opinion

J-S17009-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID P. DILIBERTO : : Appellant : No. 2477 EDA 2017

Appeal from the Judgment of Sentence June 19, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0005503-2016

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

CONCURRING MEMORANDUM BY LAZARUS, J.:

I concur in the result. However, I write separately to note that the

majority’s assertion that “Appellant’s entire argument that the court ignored

his character evidence is premised on a mere misstatement by the trial court

in its Rule 1925(a) opinion,” Majority Memorandum at 5 (emphasis added),

not only makes light of the court’s error, but is also inaccurate. Because

Diliberto’s Rule 1925(b) concise statement, which alleges “[t]he trial court

failed to give any weight to the [c]haracter evidence presented by the

Defendant, which by itself was sufficient to find Defendant not guilty,” was

necessarily written prior to the court’s Rule 1925(a) opinion, his entire

argument could not have been based on the court’s subsequent and incorrect

assertion that the defense did not produce character evidence at trial.

Moreover, I emphasize the fact that the trial court mischaracterizes the

record when it states in its Rule 1925(a) opinion that “even a cursory review J-S17009-18

of the underlying [r]ecord indicates that the defense produced no character

evidence at [t]rial. Accordingly, there is none for the [c]ourt to consider.”

Pa.R.A.P. 1925(a) Opinion, 9/11/17, at 4. In fact, the notes of testimony from

trial clearly indicate that the court stated the character evidence “will be

accepted as a stipulation.” N.T. Trial by Judge/Sentencing Trial, 6/19/17, at

74.

However, despite this judicial misstep, I agree that the trial court was

free to disregard the character evidence; the evidence did not bolster

Diliberto’s credibility or touch upon his veracity. Moreover, I would also find

that evidence of Diliberto’s honesty is not relevant to the crime with which he

was charged, simple assault. See Commonwealth v. Minich, 4 A.3d 1063

(Pa. Super. 2010); see also Commonwealth v. Schwenk, 777 A.2d 1149,

1156 (Pa. Super. 2001). Thus, any error was harmless.

Judge Kunselman joins this Concurring Memorandum.

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