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Commonwealth v. Lu

Superior Court of Pennsylvania

November 13, 2019

CHENG JIE LU, Appellant

          Appeal 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. [*]


          BENDER, P.J.E.

         Appellant, 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.

         The 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 him.
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 officer.

Trial Court Opinion (TCO), 8/10/18, at 2-5 (footnote and citations to the record omitted).

         Appellant 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.

         Appellant 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.

         Preliminarily, 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, ...

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