from the Judgment of Sentence Entered August 3, 2017 In the
Court of Common Pleas of Philadelphia County Criminal
Division at No(s): CP-51-CR-0009321-2016
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.
Cheng Jie Lu, appeals from the judgment of sentence of 3 to 6
months' incarceration, followed by 4 years'
probation, imposed after the trial court convicted him,
following a non-jury trial, of conspiracy, 18 Pa.C.S. §
903, and promoting, managing, or supervising a house of
prostitution business, 18 Pa.C.S. § 5902(b)(1). On
appeal, Appellant avers that the trial court's admission
of an out-of-court statement by an unavailable witness
violated his Sixth Amendment right to confrontation. After
careful review, we agree with Appellant. Therefore, we vacate
his judgment of sentence and remand for a new trial.
trial court summarized the facts underlying Appellant's
convictions, as follows:
On August 18, 2016, Officer Stanley Kaluza received a
complaint from the FBI. The complaint originated from the
National Center for Missing and Exploited Children
(hereinafter ``NCMEC") ... regarding a
Back Page posting of potential underage girls involved in
prostitution. The posting was forwarded from NCMEC to the
FBI[, ] who then forwarded the information to Officer Kaluza.
Officer Kaluza investigated [the] Back Page posting....
Officer Kaluza found 20 postings by the same user on August
18, 2016. Officer Kaluza believed there was cause for concern
and proceeded to investigate further.
On August 18, 2016, around 7:04 p.m.[, ] Officer Kaluza
placed a phone call to the number advertised on the Back Page
posting, the line rang twice before an "Asian female
voice answered," and asked Officer Kaluza if he would
like to see her. Officer Kaluza answered affirmatively, and
the woman's voice replied that she would send him the
address. After waiting a few minutes and not receiving an
address, Officer Kaluza placed another call and stated that
he would like to come see the voice on the other end of the
line. She then said, "Okay I'll send you
address." Officer Kaluza then received the address via
text and instructions on how to enter the alleged house of
prostitution. Officer Kaluza was instructed to make his way
to 2422 Rhawn Street, Philadelphia, PA 19152[, ] and to enter
the brown door on the left[-]hand side of the pizza store and
specifically not the pizza store. After the initial text
conversation, Officer Kaluza was told the address of the
posting would be open until 2:00 a.m. Officer Kaluza then
proceeded to make inquiries about prices and was told via
text that there were four young girls and that Officer Kaluza
could do whatever he wanted for $120 for a half hour or $140
for a full hour. Due to the nature of the complaint, Officer
Kaluza sent a text to the number stating he liked young
girls, and he received a response that there were six girls
to choose from.
On August 18, 2016, at approximately 11:30 p.m., Officer
Kaluza arrived, undercover in plainclothes, at 2422 Rhawn
Street. Officer Kaluza rang the doorbell, and the door was
opened by [Appellant]. Officer Kaluza told [Appellant],
"I must have the wrong place." [Appellant] shook
his head and waved Officer Kaluza into the foyer area of the
unit. Officer Kaluza again ask[ed], "Is this the right
place?" and [Appellant] replied affirmatively in
English. [Appellant] then led Officer Kaluza up the staircase
and to the right into a room where Officer Kaluza saw three
Asian women dressed in lingerie sitting on a sofa.
[Appellant] then walked Officer Kaluza closer to the three
girls. [Appellant] stood on the right of Officer Kaluza and
motioned with an open hand indicating that he was presenting
the three girls for Officer Kaluza to choose from. At the
sight of the presentation, Officer Kaluza asked, "wow, I
pick?" to which the three girls laughed, but
[Appellant] remained silent. At this point Xiu Xui
[hereinafter ``Xui"], one of the three women presented
to Officer Kaluza, asked Officer Kaluza what sort of service
he would want. Officer Kaluza replied he just wanted to have
fun and chose Xui because she was the female who spoke with
Xui then escorted Officer Kaluza up to the third floor of the
building. Xui opened the [door to the] front room
... and saw a sleeping woman [on the floor].
Xui turned [O]fficer Kaluza around and they made their way to
a stripped down bedroom in the rear of the building. Officer
Kaluza stated for the record the bedroom was approximately
eight-by-eight feet, had a night table, and a bed. Xui placed
a bag of condoms and lubricant on the night table and
proceeded to count the prerecorded bills Officer Kaluza had
brought... Xui proceeded to give a massage to Officer Kaluza.
After some time, Xui stopped the massage, pointed at the
condoms, and asked Officer Kaluza if he would like to begin
having sexual relations. Officer Kaluza stated he would[, ]
and [he] proceeded to ask questions to better understand the
exact sexual service Xui would provide. Xui pointed to her
mouth and vagina, but explained that the girls were not
allowed to have anal sex.
At this time, Officer Kaluza only knew of four women,
[Appellant], and himself as being the only persons in the
building. Officer Kaluza then asked Xui who the man
downstairs was. Xui identified [Appellant] as the manager.
Officer Kaluza then stated that [Appellant did] not seem very
nice[, ] and Xui replied by shaking her head. At that point,
the arrest team made a non[-] forceful entry because
[Appellant] opened the door for the arrest team. Based on
Officer Kaluza's belief that [Appellant] was the manager
operating this particular prostitution ring, [Appellant] was
placed under arrest for operating a house of prostitution.
Officer Kaluza's arrest team found $2, 900 in the house,
a grey iPhone 6S on [Appellant's] person, and purses.
Officer Kaluza, in plain clothes, conducted his investigation
undercover and at no point during his investigation
identified] himself as a police officer. Only at the time of
making the arrest did he identify himself as a police
Trial Court Opinion (TCO), 8/10/18, at 2-5 (footnote and
citations to the record omitted).
was arrested and charged with the above-stated offenses.
Prior to his non-jury trial, the Commonwealth filed a motion
in limine, seeking to admit the hearsay statements
that Xui made to Officer Kaluza, namely her remark that
Appellant was "the manager." N.T. Trial, 4/11/17,
at 56. After lengthy oral arguments by both parties just
prior to the start of trial, the court ruled that the
statements were admissible under the hearsay exception set
forth in Pa.R.E. 803(25)(E) (permitting the admission of a
hearsay statement "made by the party's coconspirator
during and in furtherance of the conspiracy"). See
id. at 38. Notably, the court did not comment on
Appellant's argument that the admission of the statement
would violate his Sixth Amendment right to confront witnesses
against him, but it implicitly rejected that claim by ruling
that the statement was admissible. Appellant's trial then
commenced, and at the close thereof, the court convicted him
of the above-stated offenses. On August 3, 2017, the court
sentenced him to the aggregate term set forth supra.
filed a timely notice of appeal, and he also complied with
the trial court's order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The
court issued its Rule 1925(a) opinion on August 10, 2018.
Herein, Appellant presents one issue for our review:
"Did the trial court err, especially in a bench trial,
in allowing the admission of hearsay testimony which violated
[Appellant's] constitutional right to directly confront
the testimony of a witness against him?" Appellant's
Brief at 2.
we observe that, whether the admission of Xui's statement
to Officer Kaluza "violated Appellant's rights under
the Confrontation Clause is a question of law, for which our
standard of review is de novo and our scope of
review is plenary." Commonwealth v. Yohe, ...