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[U] Commonwealth v. Kelly

Superior Court of Pennsylvania

February 10, 2014



Appeal from the Judgment of Sentence, September 2, 2011, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0005987-2010




Richard Kelly appeals from the judgment of sentence entered on September 2, 2011 in the Court of Common Pleas of Allegheny County following his conviction of third degree murder. Following careful review, we vacate and remand for a new trial.

The facts, as summarized by the trial court, are as follows.

At trial, Paul Fouty testified that on the South Side of Pittsburgh, in a small wooded area, there were makeshift camps that were occupied by homeless people. Fouty said he had such a camp and on April 2, 2010, he was there with [appellant], the victim Dennis Farley, and other homeless people who were all drinking alcohol. As Fouty was leaving to purchase more alcohol, he heard shouting. When Fouty turned around to see what was going on, he saw [appellant] 'going after' Dennis Farley. Later in the evening, Fouty returned to the camp, saw the victim lying dead on the ground, and called 911. Dennis Farley died from blunt force trauma to the head and torso.
Robert Lehrman was another occupant of the campsite. He testified that he and others, including the victim and [appellant], had been sitting around drinking alcohol when [appellant] made sexual advances toward the victim. Farley declined the advances and [appellant] became upset. A verbal argument ensued, and a physical confrontation followed. [Appellant] picked up a stick and hit Farley in the head several times. Lehrman then grabbed his bag and ran away. Lehrman drank more alcohol and several hours later went back to the campsite where [he] saw the victim dead on the ground.
The April 30, 2010 preliminary hearing testimony, given by Lawrence Flavin, was read into evidence at trial.[1] Flavin had testified that he had been drinking at the campsite when he heard [appellant] and Farley begin to argue. When Farley began to walk out of the camp, Flavin saw [appellant] hit Farley 2 or 3 times in the head with a metal pipe. [Appellant] then wrestled with Farley and kicked him a few times.
[Appellant] was interviewed by detectives and gave a statement after waiving his rights under Miranda v. Arizona. [Appellant] admitted that he had been staying at the campsite. Initially, however, he told detectives that he had not seen Farley since March of 2010, and that he could not have killed Farley because he was at a bar at the time of the killing. When [appellant] was told that persons reported to the police that [appellant] had an argument with the victim on the date he was killed, [appellant] said that he did have an argument with the victim over the selling of the victim's car, and because the victim would not have sex with [appellant].
Another witness at trial was a cellmate with [appellant] when they were lodged at the Allegheny County Jail. [Appellant's] cellmate testified that [appellant] admitted to getting into an argument over sex with the victim. According to the cellmate, [appellant] admitted striking the victim several times in the head during the argument.

Trial court opinion, 11/2/12 at 1-3.

Following a jury trial, appellant was convicted of third degree murder. A sentencing hearing was scheduled for September 20, 2011. On July 21, 2011, the defense filed a notice of intention to present an oral motion for extraordinary relief seeking a new trial on the grounds of after-discovered evidence of innocence. Following an evidentiary hearing, the motion was denied. Thereafter, appellant was sentenced to serve 20 to 40 years' imprisonment.

On September 28, 2011, appellant filed a post-sentence motion requesting a new trial based on after-discovered evidence. The motion was denied by operation of law on February 3, 2012. A timely notice of appeal was filed, appellant complied with the trial court's order to file a concise statement of errors complained of on appeal, and the trial court filed an opinion.

The following issues have been presented for our review:

1. Did the Trial Court abuse its discretion when it denied Appellant's post-verdict and post-sentence requests for a new trial, given the discovery of newly-available evidence of his innocence (that being the admissions of Robert "Red" Lehrman, the key prosecution witness, that he and not Appellant had in fact killed the man that Appellant was convicted of killing)?
2. Did the Trial Court err when it permitted the Commonwealth, in violation of Appellant's state and federal confrontation clause and due process clause rights, to read to the jurors the inculpatory preliminary hearing testimony of a since-deceased prosecution witness, one Lawrence Flavin, owing to the absence of a full and fair opportunity for Appellant to cross-examine Flavin at the preliminary hearing (Appellant not having been informed, at that time, that Flavin had originally told the police that he was asleep when the man Appellant was convicted of killing was killed, and thus did not see the fatal blows inflicted)?

Appellant's brief at 4.[2]

We begin by addressing the second issue presented, whether the trial court committed reversible error in admitting the preliminary hearing testimony of Lawrence Flavin ("Flavin").

At the outset, we disagree with the trial court that this issue is waived because appellant did not object at the time of the admission of the testimony. (Trial court opinion, 11/2/12 at 5.) Our review of the record reveals that appellant litigated this exact claim prior to trial and made a standing objection to Flavin's testimony immediately before the trial commenced. (See notes of testimony, 6/21-23/11 at 10-11.)

Pennsylvania Rule of Evidence 103, "Rulings on Evidence, " provides, in relevant part:

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely
objection, motion to strike, or motion in limine [.]

Pa.R.E., Rule 103(a)(1)(A), 42 Pa.C.S.A.

(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(b). See also Commonwealth v. Metzer, 634 A.2d 228, 234 (Pa.Super. 1993) ("because our Supreme Court has held that a motion in limine is effectively the same as a motion to suppress, any ruling thereon is also final, conclusive, and binding at trial") (quotation marks and citation omitted).

We find appellant's objection, both orally and in writing prior to trial, to the admission of Flavin's preliminary hearing testimony sufficient to preserve the issue for review. Appellant was not required to object to the trial court's ruling on the motion or place an objection on the record at trial in order to preserve the issue for appeal. Once the trial court made its ruling on the motion in limine, it was final and conclusive. Metzer, supra. We find the issue is adequately preserved for appeal.

Turning to the merits of the claim, we first review the pertinent facts. Flavin was a prosecution witness who testified at appellant's April 3, 2010 preliminary hearing that he had observed appellant strike the victim over the head two or three times with a metal bar. Of significance to this appeal, unbeknownst to the defense at the time of the hearing, Flavin had given an earlier statement to the police in which he stated that he had been asleep when the victim was beaten to death. (Docket #7.) Thus, Flavin averred that he did not see appellant strike the victim as he claimed at the preliminary hearing. Thereafter, Flavin gave a supplemental statement to the police changing his story and claiming that he had seen appellant strike the victim. (Id.) This information only became available to the defense after Flavin died, when pretrial discovery was provided.

The Commonwealth filed a pre-trial motion in limine seeking to introduce the preliminary hearing testimony of Flavin who had died in the interim. Defense counsel filed a response objecting that appellant had not had a full and fair opportunity to cross-examine Flavin at the preliminary hearing. The trial court granted the Commonwealth's motion, and Flavin's preliminary hearing testimony was presented at the jury trial.

Herein, appellant argues that he is entitled to a new trial as Flavin's preliminary hearing testimony should have been excluded. Appellant argues that Flavin's inconsistent statements were not made available to him at the preliminary hearing, and such statements would have been used to impeach his credibility. In support of this claim, appellant refers to the police records, which are rife with impeachment evidence, that were not made available to him until after the victim's preliminary hearing testimony. Accordingly, appellant asserts that because the Commonwealth withheld this evidence, appellant's ability to conduct a full and fair cross-examination of Flavin at the preliminary hearing was compromised and, therefore, should not have been permitted at trial. We agree.

The admissibility of evidence is a matter addressed to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion. Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa.Super. 2007), appeal denied, 598 Pa. 763, 956 A.2d 432 (2008).

Under both our federal and state constitutions a criminal defendant has a right to confront and cross-examine witnesses against him. However, it is well established that an unavailable witness' prior recorded testimony from a preliminary hearing is admissible at trial and will not offend the right of confrontation, provided the defendant had counsel and a full opportunity to cross-examine that witness at the prior proceeding.

Commonwealth v. Bazemore, 531 Pa. 582, 585, 614 A.2d 684, 685 (1992) (citations omitted); 42 Pa.C.S.A. § 5917.

[W]here the defense, at the time of the preliminary hearing, was denied access to vital impeachment evidence, such as prior inconsistent statements of the witness or the witness's criminal record, a full and fair opportunity to cross-examine the unavailable witness may be deemed to have been lacking at the preliminary hearing.

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 542-543 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996).

Clearly, as a result of his death, Flavin is "unavailable" for trial, and his testimony from a previous criminal proceeding in a court-of-record may be used if appellant had an opportunity to cross-examine him. 42 Pa.C.S.A. § 5917. Therefore, the question is whether appellant had a full and fair opportunity to cross-examine Flavin at the preliminary hearing.

Appellant relies primarily on Bazemore, supra. In Bazemore, the defense was unaware that the prosecution's sole witness at the preliminary hearing had given a prior inconsistent statement to the police, had a criminal record, and was under investigation in the same incident for which the defendant was facing charges. Id. at 584, 614 A.2d at 685. The witness was central to the prosecution's case, and therefore his credibility was of vital importance. Id. at 588-589, 614 A.2d at 687-688. Our supreme court concluded that the Commonwealth could not introduce the witness' testimony at trial because the defense was deprived of a full and fair opportunity for cross-examination. Id. at 591, 614 A.2d at 688-689.

The court held, in part,

[W]here as here, the Commonwealth knows, but does not disclose to the defense at any time prior to preliminary hearing cross-examination of a witness, that the witness has made an inconsistent prior statement and that witness then becomes unavailable to testify at trial, the Commonwealth must suffer the consequences in electing not to disclose that information which is necessary to afford defense counsel the opportunity for a full and fair cross-examination.

Id. at 591, 614 A.2d at 688. Our supreme court thus concluded that introduction of the witness' testimony at trial would deny Bazemore a full and fair opportunity to cross-examine the witness.

Citing Bazemore, this court has explained that a defendant asserting a lack of a full and fair opportunity for cross examination must establish that he or she was deprived of "vital impeachment evidence." Cf. Cruz-Centeno, 668 A.2d at 543 (holding that appellant was not denied a full and fair opportunity to cross-examine the witness where there was nothing in the witness' prior statement that was so inconsistent with his preliminary hearing testimony to compel a conclusion that appellant was denied the use of vital impeachment evidence at the preliminary hearing).

Upon review, we conclude that the trial court erred in admitting the preliminary hearing testimony at trial. Similar to Bazemore, in the present case, defense counsel was unaware at the preliminary hearing of the prior inconsistent statement made by Flavin to the police. Additionally, as noted in Bazemore, "when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure [on the part of the Commonwealth] of evidence affecting credibility violates due process." Bazemore, supra at 591, 614 A.2d at 688 (citations omitted). Flavin was one of two eyewitnesses to the crime and central to the Commonwealth's case. The other eyewitness, Lehrman, testified that he was currently incarcerated, that he had half-vision in his right eye, and that he had consumed half a gallon of either vodka or gin in addition to pain medication prior to observing appellant strike the decedent.[3] Thus, as one of two eyewitnesses, Flavin's credibility was of vital importance. Accord Commonwealth v. Strong, 825 A.2d 658, 663 (Pa.Super. 2003) (referring to Bazemore as being a case in which "defendant was denied a full and fair opportunity to cross-examine a presently deceased key Commonwealth witness at the preliminary hearing . . ."), appeal denied, 577 Pa. 702, 847 A.2d 59 (2004), cert. denied, 544 U.S. 927 (2005).

The material disclosed regarding the inconsistencies in Flavin's statements was significant. The discovery material withheld revealed that Flavin initially told the police that he was asleep and did not witness the incident. Again, at the preliminary hearing, Flavin testified that he observed appellant commit the crime. While counsel cross-examined Flavin during the hearing, such was not adequate to protect appellant's confrontation rights. The inconsistencies withheld from the defense were vital impeachment evidence and so substantial as to warrant a finding of reversible error. Cf. Commonwealth v. Paddy, 569 Pa. 47, 79, 800 A.2d 294, 314 (2002) (no Bazemore error where prior statements were not disclosed but nothing suggested that those prior statements were inconsistent with preliminary hearing testimony, and defense counsel's inability to question witness about his use of aliases and varying dates of birth was "of little moment when considered in the context of [the witness'] admitted drug use and unwillingness to assist the investigation until charged, " matters which were brought out at the preliminary hearing).

We also agree with appellant that the trial court's attempt to dissipate the prejudicial effect of permitting Flavin's preliminary hearing testimony is of no moment. At trial, the court told defense counsel that he could have "leeway" to ask the detective questions regarding Flavin's initial statement that he was "asleep or whatever it was." (Notes of testimony, 6/21-23/11 at 10.) When questioning Detective Margaret Sherwood, counsel did reveal that Flavin had originally reported he was asleep and did not witness the crime. (Id. at 304-305.) However, such disclosure does not cure the lack of cross-examination of Flavin regarding his inconsistent statements.

In Bazemore, defense counsel was also permitted to disclose to the jury the unavailable witness' prior inconsistent statement through the police officers. The court explained why such disclosure lacks impeachment value.

The mere opportunity to impeach an unavailable witness indirectly is obviously not the same thing as the opportunity to cross-examine (and impeach) the witness directly. Had the defense in this case had the opportunity to confront [the witness] directly and to cross-examine him directly with the benefit of the vital withheld information, [the witness] may have recanted his prior testimony or he may have made other responsive statements or reactions which would have strengthened appellant's defense by casting doubt upon [the witness's] credibility or his prior inconsistent account of the circumstances in question. The introduction of such impeaching information indirectly is clearly an inadequate substitute for a full and fair opportunity to examine the witness himself or herself.

Bazemore, 531 Pa. at 589 n.4, 614 A.2d at 687 n.4.

This does not end our inquiry. In its brief on appeal, the Commonwealth contends that the error should be deemed harmless. Thus, we must determine whether the improper admission of Flavin's testimony contributed to the verdict.

[A]n error will be deemed harmless where the appellate court is convinced beyond a reasonable doubt that the error could not have contributed to the verdict. Guidelines for determining whether an error is harmless include: (1) whether the error was prejudicial to the defendant or if prejudicial, whether the prejudice was de minimis; (2) whether the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) whether the evidence of guilt was so overwhelming as established by properly admitted and uncontradicted evidence that the prejudicial effect of the error was so insignificant by comparison to the verdict.

Commonwealth v. Molina, 33 A.3d 51, 67 (Pa.Super. 2011). The burden of establishing that an error was harmless rests upon the Commonwealth. Id. We find no merit in the Commonwealth's theory of harmless error.

Again, Flavin was one of two witnesses who testified to seeing appellant beat the victim to death. Lehrman was incarcerated at the time he testified for the Commonwealth and was extradited from Florida to testify in the case. Lehrman had previously been arrested for fraud after writing bad checks, for burglary, and retail theft. (Notes of testimony, 6/21-23/11 at 148-149.) On cross-examination, Lehrman admitted to initially lying to the police about his identity when questioned in the case at hand. (Id. at 156-157.) He also initially told the police that he did not see the crime occur. On cross-examination, defense counsel also pointed out several statements Lehrman made at trial that were inconsistent with his preliminary hearing testimony. For instance, at the preliminary hearing, Lehrman testified that he was drunk after drinking a half gallon of vodka; however, at trial, he stated he exclusively drinks gin and averred he was not intoxicated when he observed the incident. (Id. at 157-159.) Lehrman also concurred on cross-examination that he was on pain medication on the night of the incident. (Id. at 159.) At the preliminary hearing, he explained that the combination of alcohol and pain pills gets him "lit." (Id. at 160.) Lehrman testified that he has a lazy eye which results in his half-vision. (Id. at 162.) We agree with appellant that a "second would-be eyewitness added considerably to the strength of the Commonwealth's case." (Appellant's reply brief at 18.) We cannot agree that the admission of Flavin's preliminary hearing testimony was de minimis or merely cumulative evidence.

While there was testimony that a month after the crime was committed appellant admitted to his cellmate that he got into an argument with the victim and struck him several times in the head, this witness also has an extensive criminal record with convictions for crimes of dishonesty.

In light of the foregoing, we agree with appellant that the preliminary hearing testimony of Flavin should not have been admitted at trial. Therefore, we vacate the judgment of sentence and remand for a new trial at which Flavin's testimony is excluded from evidence.

Judgment of sentence of the Court of Common Pleas of Allegheny County is vacated, and the case is remanded for a new trial. Jurisdiction relinquished.

Judgment Entered.

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