J-S30011-22
2022 PA Super 211
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
LEA BULLOCK
Appellant No. 357 EDA 2022
Appeal from the Judgment of Sentence Entered December 15, 2021
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0001587-2019
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
OPINION BY STABILE, J.: FILED DECEMBER 9, 2022
Appellant, Lea Bullock, appeals from the December 15, 2021 sentence
imposing concurrent terms of time served to 23 months of incarceration
followed by one year of probation for three counts of endangering the welfare
of a child (“EWOC”).1 We affirm.
The record reveals that, on August 8, 2018, Appellant’s children, aged
11, 7, and 6 years old, found Appellant passed out on the porch of their home.
The children summoned police, and police arrived at the scene to find
Appellant stumbling, having difficulty remaining conscious, and smelling of
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 4304.
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PCP. They took her into custody after determining that she was unable to
care for her children.
The children, upon being placed with their grandparents, disclosed
multiple instances of abuse at the hands of their mother. The Commonwealth
eventually charged Appellant with aggravated assault, strangulation, unlawful
restraint, false imprisonment, and three counts of EWOC. At the conclusion
of a September 21, 2021 bench trial, the trial court found Appellant guilty of
three counts of EWOC and not guilty of the remaining offenses. The trial court
imposed the sentence set forth above on December 15, 2021. The trial court
denied Appellant’s timely post-sentence motion on January 6, 2022. This
timely appeal followed.
The only issue before us is whether the trial court erred in permitting
the Commonwealth to introduce evidence of Appellant’s prior conviction for
public drunkenness (see 18 Pa.C.S.A. §§ 5505). Admissibility of evidence
rests within the discretion of the trial court, and we will not reverse absent a
clear abuse of that discretion. Commonwealth v. Hernandez, 862 A.2d
647, 650 (Pa. Super. 2004), appeal denied,
889 A.2d 88 (Pa. 2005). The
operative statute on this issue is 42 Pa.C.S.A. § 5918:
§ 5918. Examination of defendant as to other offenses
No person charged with any crime and called as a witness in his
own behalf, shall be asked, or if asked, shall be required to
answer, any question tending to show that he has committed, or
been charged with, or been convicted of any offense other than
the one wherewith he shall then be charged, or tending to show
that he has been of bad character or reputation unless:
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(1) he shall have at such trial, personally or by counsel,
asked questions of the witness for the prosecution with a
view to establish his own good reputation or character, or
has given evidence tending to prove his own good character
or reputation; or
(2) he shall have testified at such trial against a codefendant, charged with the same offense.
42 Pa.C.S.A. § 5918. “Pennsylvania courts go cautiously when considering
whether to admit evidence of prior convictions for purposes of impeaching the
credibility of a defendant testifying in his own behalf.” Com. v. Hernandez,
862 A.2d 647, 650 (Pa. Super. 2004), appeal denied,
889 A.2d 88 (Pa.
2005).
This Court considered § 5918 in Commonwealth v. Murphy, 182 A.3d
1002 (Pa. Super. 2018), wherein the trial court permitted the Commonwealth
to cross-examine the defendant on a prior conviction for possession of a
controlled substance after the defendant opened the door during his direct
examination. The defendant’s direct examination by defense counsel included
the following exchange:
Q. Do you use cocaine?
A. No, sir.
Q. Do you use heroin?
A. No ,sir.
Q. Do you use marijuana?
A. No, sir.
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Id. at 1007. On cross-examination, the prosecutor asked the defendant if he
had ever used those drugs, and he said he had not.
Id. Over defense
counsel’s objection, the trial court then permitted the prosecutor to examine
the defendant on his prior drug possession conviction.
The defendant argued that he did not open the door on direct
examination, as his direct examination testimony pertained only to his present
use of controlled substances. This Court disagreed, reasoning that the
defendant, in denying that he used controlled substances, introduced evidence
of his good character and opened the door to cross examination on that
subject. Id. at 1008. Thus, the trial court did not err in permitting the
prosecutor to examine the defendant on his prior convictions for possession
of drugs and drug paraphernalia.
Id. at 1008-09.
In Hernandez, the prosecutor asked the defendant about his drug use,
and the defendant claimed that addicts and “junkies” do not sell drugs, and
that he never sold drugs since he became an addict:
Q. Now, do any drug dealers […] sell to support their habits?
A. Almost all the addicts, what they do is they steal in stores,
they steal cars they do anything to maintain their habit.
Q. Including selling some drugs and using some, correct?
A. Since I’ve been a junkie, I don’t sell drugs. I’m an
addict.
Q. You’ve been a junkie for 20 years?
A. Yes.
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Q. And you just indicated that since you’ve been a junkie,
you’ve never sold drugs?
A. Yes.
Hernandez, 862 A.2d at 648 (emphasis added). At this point, the prosecutor
sought to introduce the defendant’s prior drug dealing convictions.
Id.
Defense counsel objected that past occurrences were beyond the scope of the
defendant’s direct examination, which dealt only with the defendant’s current
activity.
Id. at 648-49. This Court held that the defendant’s “unsolicited
testimony that he had never sold drugs constituted an assertion of good
character that the prosecutor was entitled to contradict by reference to
countervailing evidence of prior convictions.”
Id. at 648 (emphasis added).
We further elaborated that the defendant gave a specific response—“Since
I’ve been a junkie, I don’t sell drugs.”—to a general question about addicts
“selling some drugs and using some.”
Id. at 651.
The Hernandez Court cited Commonwealth v. Trignani, 483 A.2d
862 (Pa. Super. 1984), in which the prosecutor asked, “You never shot
Anthony Sanutti?”, and the defendant responded, “I never shot anybody in
my life.” Id. at 541. The Trignani Court concluded that the defendant, in
his response, introduced his character for nonviolence. Id. Thus, the
Trignani Court concluded that the trial court did not err in permitting the
introduction of the defendant’s prior conviction for an aggravated robbery in
which a store clerk was shot. Id.
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In light of the foregoing caselaw, we consider Appellant’s testimony in
the instant matter. He said the following on direct examination:
Q. Now, I’d like to move you ahead to August of 2018. You’ve
heard testimony about what it is when the police came to your
place.
A. Yes.
Q. Did you use any PCP that day?
A. No, sir; I don’t use drugs.
Q. Were you drinking any alcoholic beverages that day?
A. No, sir.
N.T. Trial, 9/21/21,a t 172. Thus, defense counsel limited his questions to the
day of the alleged crime. In response to the question about PCP, Appellant
added, unsolicited, that she does not do drugs. But she made no unsolicited
blanket assertion that she does not use alcohol.
Defense counsel continued to ask Appellant to describe the events of
that day of her arrest:
Q. So how did you feel that evening?
A. I felt terrible. I was disoriented. I didn’t know what was
going on. I was hugging my daughter, saying what’s going on.
All I remember is the police flashing bright fluorescent lights in my
face, and then they just put me in the car.
Q. Do you remember anything else about that evening?
A. After that, I woke up, and I was in the county. They took
me straight to the county.
Q. Did you sit in Pottstown police at all?
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A. At the Pottstown police station, they gave me a -- I’ve
never been arrested, and that was the first time I ever went to
jail.
Id. at 173 (emphasis added). Thus, Appellant’s testimony included an
unsolicited assertion that she had never been arrested.
During Appellant’s cross-examination, the prosecutor followed up on
Appellant’s prior drug and alcohol use:
Q. I believe you also testified that you don’t use drugs.
A. No, I don’t.
Q. Have you ever?
A. No, I haven’t.
Q. What about alcohol?
A. No, I don’t.
Q. Are you sure?
A. I’m sure.
Id. at 190.
At this point, the prosecutor began to ask Appellant about a prior public
drunkenness conviction, and defense counsel objected. Counsel disputed
whether Appellant testified that she does not presently use alcohol, or whether
she meant to say that she never used alcohol. Id. at 191. Thus, the trial
court asked several questions:
[THE COURT]: Ms. Bullock, have you ever used alcohol?
THE WITNESS: No.
THE COURT: Ever?
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THE WITNESS: No.
Id. at 193. On this basis, the trial court overruled Appellant’s objection and
permitted the Commonwealth to ask her about her prior public drunkenness
conviction.
This case is distinct from Murphy in one important respect. On direct
examination, defense counsel asked Appellant if she had any alcoholic
beverages that day, i.e., the day of the incident. Appellant’s answer, “No,
sir,” did not imply that she never used alcohol. Instantly, therefore, we cannot
conclude that Appellant, by an assertion of good character on direct
examination, opened the door to being cross examined as to any prior use of
alcohol. Rather, the open-ended question as to Appellant’s alcohol use –
“What about alcohol?” – came from the prosecutor on cross examination. The
trial court followed up by asking Appellant if she ever used alcohol. After
Appellant’s negative response, the trial court admitted evidence of the prior
public drunkenness conviction.
Thus we conclude that the trial court’s rationale for admitting the prior
conviction was flawed, because in this case, unlike Murphy, Appellant’s claims
about alcohol use were solicited during her cross examination. Nonetheless,
we find no error, because Appellant’s prior conviction was admissible under
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Hernandez.2 There, and in Trignani, the defendant made an unsolicited
assertion of good character and the courts permitted evidence to contradict
the assertion. Similarly in this case, Appellant claimed on direct examination
that she had never been arrested. The admission of her prior conviction for
public drunkenness was therefore admissible to contradict that assertion. For
this reason, we find no error in the admission of her prior conviction for public
drunkenness.
Appellant did not address Murphy or Hernandez in her brief, and the
cases she relies upon do not require a different result. For example, in
Commonwealth v. Garcia, 712 A.2d 746, 749 (Pa. 1998), the
Commonwealth cross-examined the defendant about several prior crimen falsi
convictions in New York even though he never placed his character in issue.
Id. at 748. A jury found him guilty of first-degree murder.
Id. at 747. The
Supreme Court held that § 5918 “is clear that a defendant shall not be asked
about his prior crimes, except under limited circumstances, none of which
apply here.” Id. at 749. Thus, the trial court committed prejudicial error in
permitting examination about the defendant’s prior crimes. Id.
Similarly, in Commonwealth v. Bunch, 311 A.2d 632 (Pa. 1973), the
Supreme Court held under a predecessor to § 5918 that the trial court erred
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2 “It is settled that we may affirm a trial court’s evidentiary ruling on grounds
other than those specified by the court itself, particularly where the additional
reason is apparent from the record.” Commonwealth v. Edwards,
903 A.2d
1139, 1157 n.19 (Pa. 2006).
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in permitting the prosecutor to examine the defendant about prior instances
of carrying a weapon when the defendant never put his character in issue.
Id. at 633. And the error was not harmless because the “ill-disguised purpose
was not only to suggest a general disposition to violate the criminal statutes
of this Commonwealth but more importantly to implant in the minds of the
jury the concept of an individual [in] possession of a violent disposition quite
capable of forming the state of mind required for a finding of murder in the
first degree.” Id. Finally, in Commonwealth v. Barron, 264 A.2d 710, 712
(Pa. 1970), the Supreme Court concluded that the prosecutor’s cross
examination on the robbery defendant’s prior convictions—without the
defendant having introduced evidence of his good character—was prejudicial
error: “such cross-examination is specifically proscribed by statutory mandate
with certain enumerated exceptions, none of which permit this type of cross-
examination even if the evidence of guilt is overwhelming.”
Inasmuch as Garcia, Bunch, and Barron did not involve the
defendant’s assertion of good character, they are inapposite. Here, as in
Hernandez, Appellant offered an unsolicited assertion of good character. And
here, as in Hernandez, the trial court properly admitted evidence of a prior
conviction in contradiction of Appellant’s assertion. Thus, the ill that § 5918
and its statutory predecessor sought to prevent, while present in Garcia,
Bunch, and Barron, is not present here.
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Appellant also asserts that the trial court should not have permitted the
prosecutor to examine Appellant about the circumstances of the prior arrest
and conviction, because the introduction of a prior conviction as impeachment
should be limited to the “name, time, and place of the crime and the
punishment received.” Commonwealth v. Creary, 201 A.3d 749, 754 (Pa.
Super. 2018). We conclude that any error in this regard was harmless.
“Harmless error is present when the properly admitted evidence of guilt is so
overwhelming and the prejudicial effect of the error is so insignificant by
comparison that it is clear beyond a reasonable doubt that the error could not
have contributed to the verdict.” Garcia,
712 A.2d at 749. Furthermore, any
error in the inadmissibility of a prior conviction is harmless where the trial
court, sitting as finder of fact, expressly states that it disregarded the prior
record. Commonwealth v. Davis,
421 A.2d 179, 183 (Pa. 1980). That is
precisely what occurred here:
The court found [Appellant] guilty of three (3) counts of
EWOC based on the testimony of [the children] and Ofc.
Maciejewski, all of whom as stated were credible. That testimony
[…] was more than sufficient to convict [Appellant]. As a result,
[Appellant’s] denial of the use of alcohol and her prior conviction
for public drunkenness had no impact on the Court’s ultimate
finding of guilt.
Trial Court Opinion, 4/7/22, at 7-8. Because the trial court did not rely on the
prior conviction in determining Appellant’s guilt, any error in the admission of
its circumstances was harmless beyond a reasonable doubt.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2022
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