Commonwealth v. Dowling

778 A.2d 683
CourtSuperior Court of Pennsylvania
DecidedJune 1, 2001
StatusPublished
Cited by364 cases

This text of 778 A.2d 683 (Commonwealth v. Dowling) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dowling, 778 A.2d 683 (Pa. Ct. App. 2001).

Opinion

LALLY-GREEN, J.

¶ 1 Appellant, Leroy Dowling, appeals from the judgment of sentence entered March 13, 2000. Appellant argues that the trial court abused its discretion by limiting cross-examination of a Commonwealth witness. We affirm.

¶ 2 The record reflects the following. At trial, the Commonwealth presented evidence from four eyewitnesses that on March 6, 1999, at approximately 3:15 a.m., Appellant fired five or six shots at an occupied SEPTA bus. Trial Court Opinion, 8/9/2000, at 2-5. At trial, Commonwealth witness Henry Dill engaged in the following exchange with Appellant’s trial counsel, Scott DiClaudio, Esq.:

Q. Do you remember testifying at a prior proceeding?
A. Yes.
Q. That was in December of this year?
A. Yes.
Q. A couple weeks ago. December first; is that correct?
A. Yes.
Q. Miss Zuckerman [the Assistant District Attorney] asked you some questions?
A. Yes.
Q. Another attorney by the name of Mr. Cohen asked you some questions; is that correct? Another attorney asked you questions on that same day?
A. Just you all two.
Q. I wasn’t here.
A. It was another gentleman.
Q. Are you telling me you thought I was the one who asked you the questions?
A. Yes.

N.T., 12/15/99, at 50. Counsel attempted to ask follow-up questions on this topic, including: (1) “You realize that was another man 40 pounds heavier than me?”; (2) “Sir, did you just tell the ladies and gentlemen you thought I was here asking you questions for about an hour?”; (3) “The man who asked you questions on December first, did he have a goatee?”; and (4) “How old was the person who was asking you questions on December first?” Id. at 50-52. The trial court sustained Commonwealth objections to each question and directed counsel to proceed to a different line of questioning. Id. at 50-53.

¶ 3 On December 17, 1999, a jury found Appellant guilty of aggravated assault, possession of an instrument of crime, criminal conspiracy, 1 and recMessly endangering another person. N.T., 12/17/99, at 2-4. *686 On March 13, 2000, Appellant was sentenced to a mandatory prison term of five to ten years for aggravated assault, and a consecutive term of two to four years for criminal conspiracy. N.T., 3/13/00, at 21. This appeal followed.

¶ 4 Appellant raised the following issue in his Concise Statement of Matters Complained of on Appeal:

The court erred and deprived the defendant from receiving a fair trial by prohibiting counsel from cross examining based on a prior inconsistent statement of an eyewitness on the issue of identification.

Docket Entry D-7. 2 In its Rule 1925 Opinion, the trial court wrote: “As Defendant did not state which witness or what statement he is referring to, this Court cannot fully address this issue.” Trial Court Opinion, 8/9/2000, at 8.

¶ 5 Appellant raises one issue on appeal: Did the trial court err and deprive the Appellant from receiving a fair trial by prohibiting counsel from cross-examining the complainant with respect to matter impeaching his credibility?

Appellant’s Brief at 4.

¶ 6 Before addressing the merits of Appellant’s claim, we must determine whether it is waived. Our Supreme Court has held that when a trial court directs a defendant to file a Concise Statement of Matters Complained of on Appeal, any issues not raised in such a statement will be waived. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 308 (1998).

¶ 7 Appellant’s Concise Statement refers to the trial court “prohibiting counsel from cross examining based on a prior inconsistent statement of an eyewitness.” Docket Entry D-7 (emphasis added). In contrast, Appellant argues on appeal that the trial court erred by failing to allow further cross-examination regarding Mr. Dill’s inability to identify the attorney who had questioned him in a prior proceeding. As the Commonwealth points out, this issue has nothing to do with a prior inconsistent statement. Because the issue raised on appeal was not raised in the Concise Statement, the issue on appeal is waived. Lord, 719 A.2d at 308.

¶ 8 In a similar vein, the issue raised on appeal is waived because Appellant’s Concise Statement was too vague for the trial court to identify and address the issue to be raised on appeal. In Lord, our Supreme Court reasoned that:

The absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the .appellate process.

Id. “When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review.” Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.Super.2000) (brackets and quotation marks omitted), appeal granted, 564 Pa. 471, 769 A.2d 442, 2001 Pa. LEXIS 602 (2001), citing, Giles v. Douglass, 747 A.2d 1236, 1237 (Pa.Super.2000). “When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.” In re Estate of Daubert, 757 A.2d 962, 963 (Pa.Super.2000).

¶ 9 In other words, a Concise Statement which is too vague to allow the court to identify the issues raised on ap *687 peal is the functional equivalent of no Concise Statement at all. While Lord and its progeny have generally involved situations where an appellant completely fails to mention an issue in his Concise Statement, for the reasons set forth above we conclude that Lord should also apply to Concise Statements which are so vague as to prevent the court from identifying the issue to be raised on appeal. In the instant case, Appellant’s Concise Statement was not specific enough for the trial court to identify and address the issue Appellant wished to raise on appeal. As such, the court did not address it. Because Appellant’s vague Concise Statement has hampered appellate review, it is waived.

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Bluebook (online)
778 A.2d 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dowling-pasuperct-2001.