Com. v. Grush, S.

J-A29001-22

2023 PA SUPER 64

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

SHAINA ANN HELEN GRUSH : No. 611 WDA 2022

Appeal from the Order Entered May 10, 2022

In the Court of Common Pleas of Butler County Criminal Division at

No(s): CP-10-CR-0001077-2020

BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.

OPINION BY BENDER, P.J.E.: FILED: APRIL 11, 2023

The Commonwealth appeals from the trial court’s order granting

Appellee Shaina Ann Helen Grush’s motion to exclude the preliminary hearing

testimony of Jonathan Lubinsky, who died before the matter could proceed to

trial. The trial court determined that Appellee had been denied the “full and

fair opportunity for cross-examination” required by law based on the

Commonwealth’s failure to disclose to preliminary hearing counsel three

items: Lubinsky was actively supervised by Butler County’s probation

department; Lubinsky had pending charges; and Lubinsky’s lengthy criminal

record of crimen falsi convictions. The Commonwealth maintains that

Appellee received a full and fair opportunity for cross-examination, and that

her confrontation rights will be adequately served by introducing this

impeachment material via other means, such as stipulations by the

Commonwealth. Additionally, the Commonwealth contends that all the

J-A29001-22

material was publicly accessible, and that Appellee’s counsel specifically had

reason to know about the material since its office had represented Lubinsky

in several of those cases. We reverse and remand.

I.

Factual and Procedural History

Appellee is currently charged with one count of criminal homicide

concerning the death of Robert Wagner, who died because of a stab wound to

his chest. We briefly recount the testimony set forth by the Commonwealth

at the preliminary hearing. The Commonwealth called two witnesses:

Lieutenant Chad Rensel and Lubinsky. Lieutenant Rensel was the affiant, and

Lubinsky supplied the only testimony linking Appellee to the homicide.

Lubinsky, who was thirty-seven years old at the time of the hearing,

was friends with Wagner. On June 13, 2020, he ran into Wagner at

approximately 1:00 p.m. The two walked around town and returned to

Wagner’s apartment to drink. Lubinsky asked Wagner if he wanted to take a

hit of LSD. Wagner initially deferred, but around 7:00 p.m., he asked Lubinsky

for some LSD. Wagner and Lubinsky both took “one hit of acid and we went

– it was 8 o’clock [when Appellee] got off work, and that’s when we went and

got her[.]” N.T., 8/5/20, at 8. Appellee, Lubinsky, and Wagner all returned

to Wagner and Appellee’s apartment. Two other men joined them, but both

left around 12:30 a.m. Lubinsky stayed.

Appellee and Wagner decided around 1:45 a.m. to walk to a

convenience store for cigarettes. The two had a minor dispute about

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Lubinsky’s tripping from the acid but Lubinsky characterized it as “nothing

major.” Id. at 10. Lubinsky stayed behind to watch Appellee’s child. About

fifteen minutes later, Wagner knocked on the door and said, “Fuck this. I’m

leaving. I’m grabbing some beer and we’re leaving here.” Id. Lubinsky, who

had planned to stay the night, began collecting his things. Appellee followed

Wagner into the room, and the two continued arguing. Lubinsky heard

Appellee say, “I’ll stab you in the fucking face.” Id. at 11. Wagner mocked

her, saying, “With what?” Id. While Lubinsky and Wagner continued to gather

their belongings, Appellee retrieved a knife from a drawer. Lubinsky saw her

approach Wagner. Lubinsky testified, “I didn’t see exactly what happened but

– I don’t know if Rob moved forward or anything, like, to provoke it. But I

seen [sic] [Appellee] go like this (indicating) and then she said, ‘Oh my God.

Did I just do that?’” Id. at 12. He saw Appellee throw the knife in the sink,

while Wagner moved about and was “kind of crying because … he just got

stabbed.” Id. Lubinsky testified that he was scared and grabbed his things

and fled the apartment, and voluntarily checked himself into a psychiatric

facility later that evening. Id. On cross-examination, Lubinsky admitted that

he was smoking marijuana and had used LSD. Id. at 18. Counsel pressed

Lubinsky on why he did not render aid to his friend, and elicited that Lubinsky

only spoke to the police after they contacted him at the hospital. Id. at 21.

Lubinsky agreed that he did not tell the hospital staff anything when he

checked himself in to the psychiatric unit.

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Appellee also elicited, among other points, from Lieutenant Rensel that

Lubinsky was still a suspect, that Appellee called 911, that Appellee and

Wagner professed their love to each other as Wagner was dying, that Appellee

made no incriminating admissions and denied stabbing Wagner, and that “[a]t

this time” the only evidence putting a knife in Appellee’s hands was Lubinsky’s

statement. Id. at 33.

Lubinsky died of undisclosed causes on May 22, 2021, and Appellee filed

a motion in limine to preclude the Commonwealth from introducing Lubinsky’s

testimony. Appellee argued that she was denied a full and fair opportunity to

cross-examine Lubinsky based on the Commonwealth’s failure to disclose

three things: Lubinsky “was actively supervised by Butler County Adult

Probation, had pending charges, and crimen falsi that was not provided to

[Appellee] prior to the preliminary hearing.” Motion in limine, 3/7/22, at

unnumbered 2 ¶ 12. The pending charges were apparently for drug

possession and post-dated the homicide.

The trial court held a hearing and granted the motion by order and

accompanying opinion dated May 10, 2022. In its order, the trial court agreed

with Appellee that Commonwealth v. Smith, 647 A.2d 907 (Pa. Super.

1994), was on point, particularly its statement that stipulations are “an

inadequate substitute for cross-examination in a criminal setting.” Order,

5/10/22, at 2 (quoting Smith, 647 A.2d at 914). Quoting Commonwealth

v. Bazemore, 614 A.2d 684 (Pa. 1992), the court opined that the

Commonwealth’s case entirely hinged upon Lubinsky’s testimony. The trial

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court further concluded that the Commonwealth’s claim that counsel was

aware or should have been aware of Lubinsky’s history was not supported by

any caselaw.

The Commonwealth filed a timely notice of appeal, and the trial court

filed a Pa.R.A.P. 1925(a) opinion adopting its order.1 The Commonwealth

raises the following issues:

I. Did the trial court commit an abuse of discretion when it granted

Appellee’s motion in limine prohibiting unavailable witness

Jonathan Lubinsky’s preliminary hearing testimony from being

admitted as evidence at trial?

II. Did the trial court misapply the law and commit an error of law

when it granted Appellee’s motion in limine prohibiting unavailable

witness Jonathan Lubinsky’s preliminary hearing testimony from

being admitted as evidence at trial?

Commonwealth’s Brief at 4.

Confrontation Clause issues present a pure question of law, and our

standard of review is de novo. Commonwealth v. Yohe, 79 A.3d 520, 530

(Pa. 2013); Commonwealth v. Stinson, 628 A.2d 1165, 1171 (Pa. Super.

1993) (concluding that the trial court “committed an error of law in admitting

the preliminary hearing testimony”).

II.

Parties’ Arguments

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1 The Commonwealth certified in its notice of appeal that the order will

terminate or substantially handicap the prosecution, thereby making this

appeal as of right pursuant to Pa.R.A.P. 311(d).

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Initially, the Commonwealth argues that the cross-examination did in

fact address the impeachment material, albeit in generic terms. The

Commonwealth points out that the preliminary hearing transcript establishes

that Lubinsky “had a criminal record and that he was on probation, as well as

large amounts of information that can be used to impeach credibility and cast

him in a bad light.” Commonwealth’s Brief at 11.

The Commonwealth also challenges the trial court’s assessment that

Lubinsky’s testimony is critical to its case. “The [t]rial [c]ourt is not aware of

all of the Commonwealth’s evidence. On what is it basing its statement that

the Commonwealth’s entire case hinges upon the testimony of [Lubinsky]?”

Id. at 10. While the court’s ruling “would substantially handicap the

Commonwealth’s case[,] … it would not terminate it.” Id.

Addressing Appellee’s constitutional right to confront Lubinsky, the

Commonwealth argues that the nature of whether a defendant had a full and

fair opportunity to cross-examine a currently-unavailable witness calls for a

case-by-case adjudication. This case “contains the unusual, but not unique,

facts where [d]efense [c]ounsel was thoroughly familiar with the unavailable

witness’s background, and as a result conducted a fair and full and effective

cross-examination.” Id. at 13.

The Commonwealth also distinguishes Smith, which Appellee largely

relied upon in her motion. Motion in limine, 3/7/22, at unnumbered 2 ¶ 16

(“Herein, we are presented with the same situation faced in Smith….”). As

discussed in further detail infra, in Smith, the Commonwealth appealed from

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an order denying the Commonwealth’s motion to introduce a preliminary

hearing transcript. The witness had acted as a confidential informant for the

Commonwealth on several occasions and had, unbeknownst to Smith at the

time of the preliminary hearing, pending robbery charges. This Court held

that Smith was denied a full and fair opportunity to cross-examine and

therefore affirmed the order. The Commonwealth argues that this case is

readily distinguishable, as the criminal charges in Smith were much more

serious, one of which was a robbery occurring after the controlled buy. The

Commonwealth directs our attention to cases distinguishing Smith on the

grounds that “the prior records of the unavailable witnesses unambiguously

suggested ulterior motives for testifying[.]” Commonwealth’s Brief at 22

(quoting Commonwealth v. Cruz-Centeno, 668 A.2d 536, 544 (Pa. Super.

1995)). The Commonwealth characterizes Smith and Bazemore as cases

where the criminal histories suggested “ulterior motive, special treatment or

lack of credibility,” none of which, in its view, apply to Lubinsky.

The Commonwealth acknowledges that Lubinsky had a lengthy criminal

history, identifying eleven convictions that qualify as crimen falsi: burglary,

two convictions for theft by unlawful taking, and eight separate convictions

for retail theft. The Commonwealth argues that Appellee’s counsel “was aware

of at least eight, and probably all of these convictions[,] prior to the

preliminary hearing.” Id. at 19. The basis for this claim is that for eight of

these convictions, the Butler County Public Defender’s Office, who was

appointed to represent Appellee, represented Lubinsky. Thus, Appellee’s

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counsel was on constructive — if not actual — notice of several of Lubinsky’s

crimen falsi convictions. Finally, the Commonwealth adds that Lubinsky’s

pending charges were for a “post-Robert Wagner death drug possession case,”

and submits that the Commonwealth can stipulate to its resolution. Id.

Consistent with her presentation to the trial court, Appellee maintains

that this case is on all fours with Smith. Appellee argues that the

Commonwealth’s arguments that her constitutional rights to confront her

accusers may be satisfied by stipulations all go towards a lack of prejudice.

However, “Smith specifically addressed this issue,” and concluded that “as

between the compelling interest of admitting the former testimony of an

unavailable witness and the defendant’s constitutional right to confront a

witness, we find the latter paramount.” Appellee’s Brief at 10 (quoting Smith,

647 A.2d at 914). Responding to the Commonwealth’s argument that she

knew (or had reason to know) of Lubinsky’s criminal history, Appellee

characterizes it as “a blatant, lame attempt to shift [its] burden of disclosure

to a burden of inquiry.” Id. at 10-11.

III.

Analysis

Introducing statements of an unavailable witness presents issues

relating to both the constitutional rights of confrontation as well as evidentiary

rules governing introduction of hearsay. The relevant hearsay exception is

codified at Rule of Evidence 804, which permits the introduction of former

testimony if the declarant is unavailable as a witness:

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(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful

deposition, whether given during the current proceeding or

a different one; and

(B) is now offered against a party who had--or, in a civil

case, whose predecessor in interest had--an opportunity

and similar motive to develop it by direct, cross-, or redirect

examination.

Pa.R.E. 804(b)(1).

Admitting former testimony is subject to constitutional restraints arising

out of the constitutional right to confront one’s accusers. As established by

Crawford v. Washington, 541 U.S. 36 (2004), where testimonial

statements2 are at issue “the Sixth Amendment demands what the common

law required: unavailability and a prior opportunity for cross-examination.”

Id. at 68. “Where the prior statement is testimonial … our Courts continue to

apply the standard originally set forth in Bazemore to determine whether the

defendant had a full and fair opportunity for cross[-]examination.”

Commonwealth v. Leak, 22 A.3d 1036, 1044 (Pa. Super. 2011).

Turning to caselaw specifically examining what qualifies as a “prior

opportunity,” the seminal Bazemore case marked the first time that our

Supreme Court addressed what kind of opportunity is required “where the

Commonwealth has failed to disclose relevant impeachment evidence prior to

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2 “Whatever else the term covers, it applies at a minimum to prior testimony

at a preliminary hearing, before a grand jury, or at a former trial; and to police

interrogations.” Crawford, 541 U.S. at 68.

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the initial testimony[.]” Bazemore, 614 A.2d at 686. The Court based its

holding on both the United States and Pennsylvania constitutions:

Under both our federal and state constitutions a criminal

defendant has a right to confront and cross-examine witnesses

against him. Commonwealth v. McGrogan, 523 Pa. 614, 568

A.2d 924 (1990) (collecting cases). 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.

Id. at 685.

The hearsay exception requires that the witness is unavailable, and that

counsel had both the opportunity and motive to develop the testimony on

cross-examination. There is no dispute that Lubinsky is unavailable, and the

parties accept that Appellee’s motive to develop the testimony was present.

The only issue is whether Appellee had a full and fair opportunity to cross-

examine.

We agree with the Commonwealth that this legal conclusion largely rests

on the facts. See id. at 688 (“Our holding is limited to the facts sub

judice….”); Cruz-Centeno, 668 A.2d at 544 (“Nor do we conclude, under the

circumstances of the instant case, that [the] appellant’s inability to cross-

examine Perez at the preliminary hearing … deprived [the] appellant of a full

and fair opportunity to cross-examine Perez.”); Smith, 647 A.2d at 915

(“Under the specific facts before us on this appeal, we affirm the trial court’s

order denying the Commonwealth’s motion to use the transcript of Mr. Cain’s

preliminary hearing testimony….”).

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We begin by reviewing precedents to establish useful guideposts,

starting with cases that found a deprivation of the “full and fair opportunity.”

In Bazemore, the Commonwealth called Melvin Hauser at the preliminary

hearing. Bazemore’s attorney was either “unaware or had not been informed

that Mr. Hauser had made a prior inconsistent statement to the police; that

he had a criminal record; and that the Office of the District Attorney was, at

that time, contemplating the filing of criminal charges against Mr. Hauser”

regarding the same incident for which Bazemore was facing charges.

Bazemore, 614 A.2d at 685. The Commonwealth maintained that

Bazemore’s right to confront Hauser was satisfied on the basis that he had an

opportunity to cross-examine at the prior proceeding. Our Supreme Court

disagreed, explaining that “the opportunity to cross-examine must be fair

given the circumstances of the particular matter in order for such cross-

examination to be deemed adequate[.]” Id. at 686 (emphasis in original).

The Bazemore Court linked the “fairness under the circumstances” inquiry to

whether the testimony at issue was sufficiently reliable:3

As we noted in [Commonwealth v.] Mangini [425 A.2d 734 (Pa.

1981)], the exception for admission of prior testimony is

“predicated on the ‘indicia of reliability’ normally afforded by

adequate cross-examination.” But where, as here, that “indicia of

reliability” is lacking, the exception is no longer applicable. Id. at

… 739.

____________________________________________

3 We note that the “sufficiently reliable” standard derived from United States

Supreme Court caselaw concerning the application of the Confrontation Clause

to hearsay. Those cases were abrogated by Crawford. As previously noted,

we continue to apply the Bazemore standard.

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Id. at 687. The former testimony lacks those indicia of reliability where the

defendant was not given an “adequate opportunity to test the veracity of th[e]

witness” at the former hearing. Id. at 688.

In Smith, this Court affirmed a ruling barring the admission of

preliminary hearing testimony of Blaine Cain, who testified that he had

purchased cocaine from Smith while acting as a confidential informant. “The

Commonwealth, however, had not disclosed to defense counsel that Mr. Cain

had a prior criminal record or that he had a pending robbery charge.” Smith,

647 A.2d at 909. Cain subsequently refused to testify, even after the trial

court ordered him to do so based on the Commonwealth’s offering use

immunity. Id. The trial court in Smith noted that Cain had at least three

charges dismissed in the months preceding the alleged cocaine purchase, and

in fact had been charged with a robbery occurring after the drug sale but

before the preliminary hearing. Those charges were dismissed before the

preliminary hearing; he “had yet another robbery charge pending against him

when he testified at [Smith]’s preliminary hearing.” Id. at 910 (quoting trial

court opinion). The Commonwealth conceded that it failed to disclose Cain’s

criminal history or his pending criminal charges but offered to stipulate to

those matters. The Commonwealth additionally wished to stipulate that no

deal was in place. It argued that the stipulations “provide[] the same

impeachment value as would the live cross-examination of Mr. Cain at trial.”

Id. at 912.

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We disagreed. A witness may be biased in favor of the Commonwealth

due to a subjective expectation of leniency and “that possible bias, in fairness,

must be made known to the jury. Even if the prosecutor has made no

promises, either on the present case or on other pending criminal matters,

the witness may hope for favorable treatment from the prosecutor[.]” Id. at

912 (quoting Commonwealth v. Evans, 512 A.2d 626, 631 (Pa. 1986))

(emphasis in original). As in Bazemore, the Smith Court deemed the

stipulations to be an “inadequate substitute” for a full cross-examination of

the witness on those matters. Id. at 913 (quoting Bazemore, 614 A.2d at

687 n.4). It explained:

Given the significance of Mr. Cain’s testimony, as the only

eyewitness in the instant case, his credibility has become a key

issue for trial. Unfortunately, the unavailability of Mr. Cain’s live

testimony at trial forecloses [the] appellee’s opportunity to put to

the jury Mr. Cain’s subjective expectations, if any, of a deal in

exchange for his testimony in favor of the Commonwealth. [The

a]ppellee has the right to explore the possibility of any coercive

power, that the Commonwealth might have had over Mr. Cain,

which may have been an incentive for Mr. Cain to testify favorably

for the Commonwealth. Commonwealth v. Lipscomb, 409 A.2d

857 ([Pa. Super.] 1979). See Commonwealth v. Johnston,

644 A.2d 168 ([Pa. Super.] 1994) ([the] appellant granted a new

trial where the Commonwealth failed to disclose a plea bargain

between the Commonwealth and its only eyewitness directly

linking [the] appellant to the crime charged). Notwithstanding the

Commonwealth’s willingness to enter stipulations of an objective

nature, such stipulations are an inadequate substitute for cross-

examination in a criminal setting. See … Bazemore[,] … 614

A.2d at 686. Moreover, defense counsel refused to stipulate to

the existence or non-existence of Mr. Cain’s subjective

expectations, the nature and extent of which would go directly to

his bias or interest. The potential for bias or interest on the part

of this witness is a matter which [the] appellee has a right to put

to the jury. Because Mr. Cain has refused to testify, [the] appellee

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is foreclosed from exploring the bias issue. The Commonwealth’s

proposed stipulations are not an effective remedy for the denial of

[the] appellee’s right.

Id. at 914 (emphasis in original; citation omitted).

Additionally, Smith rejected the Commonwealth’s argument that Cain’s

prison clothes should have alerted counsel to Cain’s criminal background,

which supports Appellee’s position herein that counsel was not required to

investigate whether Lubinsky had a criminal record.

We now examine cases where courts have found that a defendant had

a “full and fair opportunity” despite some impediment to full impeachment

concerning the witness’s criminal record or potential subjective expectation of

leniency. In Cruz-Centeno, supra, the appellant was convicted of third-

degree homicide for the death of Ronald Johnson. The evidence indicated that

Cruz-Centeno, who was sitting with Claudio Ayala, was playing with a loaded

revolver when Johnson and Luis Perez walked by. Johnson asked, “What’s

up?”, and Cruz-Centeno responded by aiming the revolver at Johnson and

shooting him. When police arrived, Perez identified Cruz-Centeno as the

shooter. Perez testified at the preliminary hearing but was unavailable for

trial, and the Commonwealth introduced the transcript of his preliminary

hearing testimony.

Cruz-Centeno argued that the trial court erred, as “he was denied the

opportunity to cross-examine fully the witness at the preliminary hearing in

this case.” Cruz-Centeno, 668 A.2d at 542. Specifically, he complained that

the Commonwealth “had not provided the defense with a prior inconsistent

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statement[,] which Perez had made to police[,] or Perez’s juvenile record,

which included open charges of possession of a controlled substance,

possession of a controlled substance with intent to deliver and delivery of a

controlled substance.” Id. Perez’s criminal record “consisted of charges in

juvenile court for possession with intent to deliver a controlled substance on

which a bench warrant had been issued on March 12, 1993, four months

before the witness testified at the preliminary hearing.” Id. at 544. We

concluded that the former testimony was properly admitted, stating:

Nor do we conclude, under the circumstances of the instant case,

that [the] appellant’s inability to cross-examine Perez at the

preliminary hearing with respect to the witness’s outstanding drug

charges and open bench warrant deprived [the] appellant of a full

and fair opportunity to cross-examine Perez. At trial, Perez’s

juvenile record was introduced into evidence and was considered

by the trial court in assessing the credibility of the unavailable

witness. As such, the trial court was aware of the potential that

Perez may have been testifying against [the] appellant out of an

expectation for leniency in his own pending case. While cross-

examination of Perez with respect to his pending case would have

been preferable, there is nothing in the record which suggests that

the Commonwealth intentionally withheld this information from

the defense prior to the preliminary hearing or that it had been

requested by the defense at that time.

Id.

We agreed with the trial court’s assessment that “compar[ing] this

minor, unrelated charge to the severity of the prejudicial criminal records of

the witnesses in Bazemore and Smith would be a travesty of justice.” Id.

(quoting trial court opinion). We also examined the content of the cross-

examination, in which counsel elicited testimony that was “consistent with

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[the] appellant’s defense at trial. Moreover, during the cross-examination of

Perez at the preliminary hearing, [the] appellant was not precluded from

pursuing any line of inquiry.” Id. at 545.

In Leak, supra, the Commonwealth prosecuted Leak for several sex

crimes. The victim, Quianna Martin, had a terminal illness and the

Commonwealth, anticipating her unavailability at trial, arranged to videotape

her preliminary hearing testimony. The hearing was continued several times

due to Martin’s illness, and was further delayed by Martin’s incarceration in

Georgia on a probation violation. Leak argued that the videotaped testimony

was improperly admitted because “the Commonwealth did not provide

sufficient discovery to afford him a full and fair opportunity to cross[-]examine

Martin at the preliminary hearing.” Leak, 22 A.3d at 1043. Leak identified

four specific items that the Commonwealth failed to provide: (1) a statement

given to police by another eyewitness; (2) medical records of Martin’s

treatment; (3) DNA testing showing Leak’s sperm on the tail of Martin’s shirt;

and (4) Martin’s criminal record from Georgia, including crimen falsi

convictions.

The resolution of the first and third items is not pertinent. Regarding

the second item, the prosecutor testified that he did not have the hospital

records at the time of the hearing. We stated that Leak’s argument was “on

weak footing” in that Bazemore requires the denial of access, and Leak “does

not explain why he couldn’t have subpoenaed the records prior to the

preliminary hearing.” Id. at 1045. Additionally, Leak “failed to establish that

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those records provided vital impeachment evidence” as, at best, the records

established an inconsistency. Turning to Martin’s criminal record, the trial

court found at a hearing that Leak “did in fact have Martin’s criminal record

prior to the preliminary hearing.” Id. at 1046. This Court also cited the

transcript of Martin’s videotaped testimony, which established that “Leak’s

counsel examined Martin about the reasons for her incarceration in Georgia,

and she testified that she was incarcerated due to a violation of a sentence of

probation that she was serving for a theft conviction.” Id.

These cases establish that an inability to impeach a witness based on

ignorance of a prior criminal history is not fatal to its later admission. See

also Commonwealth v. Paddy, 800 A.2d 294, 313 (Pa. 2002) (holding that

counsel was not ineffective for failing to object to introduction of former

testimony; “[C]ontrary to Paddy’s assertion on appeal, preliminary hearing

counsel had obtained at least a portion of Roussaw’s criminal history and put

it to effective use.”). In other words, the fact that a witness has a prior

criminal history is not itself “vital” impeachment material.

With these guideposts in mind, we must decide whether the specific

material at issue here is “vital.” If so, Appellee was denied a full and fair

opportunity to cross-examine.4 We cannot make credibility determinations in

doing so, as any impeachment material necessarily goes towards credibility,

____________________________________________

4As detailed infra, at pages 24-26 of this memorandum, we decline to address

whether Appellee’s counsel had actual or constructive notice of Lubinsky’s

criminal history.

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which is for the fact-finder to decide. Thus, there must be some distinguishing

factor of impeachment material beyond its impact on a credibility assessment

that serves to distinguish “vital” impeachment material from non-vital

material. Examining the caselaw, the standard appears to be whether the

Commonwealth failed to disclose material which plausibly suggests that the

witness is testifying favorably in the hopes of receiving some benefit from the

Commonwealth, thereby supporting a legal conclusion that the defendant

lacked an adequate opportunity to develop cross-examination. As we

remarked in Cruz-Centeno, “in both Bazemore and Smith, the prior records

of the unavailable witnesses unambiguously suggested ulterior motives for

testifying, and, the failure of the Commonwealth to disclose such information

denied the defendants in those cases a full and fair opportunity to cross-

examine the unavailable witnesses at their preliminary hearings.” Cruz-

Centeno, 668 A.2d at 544.

Ultimately, we deem this case closer to Cruz-Centeno and Leak than

Smith and Bazemore for four reasons. First, we agree with the

Commonwealth that, unlike in Bazemore and Smith, Lubinsky’s criminal

history, pending charges, and probationary status do not correspond to an

unambiguous ulterior motive for Lubinsky to testify apart from his obvious

motivation to exonerate himself. Obviously, Lubinsky had every reason to pin

the crime on Appellee as the Commonwealth’s evidence suggests that only

two people could be responsible for the victim’s murder. This could be said to

strengthen the case for finding that Appellee lacked a “full and fair opportunity

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to cross-examine” in that his credibility is paramount. But the test demands

only that: a full and fair opportunity for cross-examination. It does not

demand a total and comprehensive cross-examination. “Generally speaking,

the Confrontation Clause guarantees an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S.

15, 20 (1985) (per curiam) (emphasis in original).5 Lubinsky’s motive to

____________________________________________

5Following this statement, the Fensterer Court cited Ohio v. Roberts, 448

U.S. 56 (1980), abrogated by Crawford, supra, which stated:

We need not consider whether defense counsel’s questioning at

the preliminary hearing surmounts some inevitably nebulous

threshold of “effectiveness.” In Mancusi [v. Stubbs, 408 U.S.

202 (1972)], to be sure, the Court explored to some extent the

adequacy of counsel’s cross-examination at the earlier

proceeding. That discussion, however, must be read in light of

the fact that the defendant’s representation at the earlier

proceeding, provided by counsel who had been appointed only

four days prior thereto, already had been held to be ineffective.

Under those unusual circumstances, it was necessary to explore

the character of the actual cross-examination to ensure that an

adequate opportunity for full cross-examination had been afforded

to the defendant. We hold that in all but such extraordinary cases,

no inquiry into “effectiveness” is required. A holding that every

case involving prior testimony requires such an inquiry would

frustrate the principal objective of generally validating the prior-

testimony exception in the first place—increasing certainty and

consistency in the application of the Confrontation Clause.

The statement in Mancusi quoted in the text indicates the

propriety of this approach. To the same effect is Mattox v.

United States, 156 U.S. [237], … 244 … [(1895)] (“The

substance of the constitutional protection is preserved to the

prisoner in the advantage he has once had of seeing the witness

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exonerate himself would exist independently of the impeachment material,

and cross-examination on that motivation was crucial given his status as the

only other plausible suspect.6 But counsel had a full opportunity to explore,

and did explore, that issue at the preliminary hearing.

Second, Lubinsky’s crimen falsi convictions are largely relatively minor

as the vast majority are for retail theft. In Cruz-Centeno, this Court

described a juvenile charge for possession with intent to deliver, on which a

bench warrant was issued four months before the preliminary hearing, as

much less serious than the circumstances of Bazemore and Smith. The

same point applies here. Lubinsky’s burglary charge, while a serious crime,

____________________________________________

face to face, and of subjecting him to the ordeal of a cross-

examination[.]”).

Id. at 73 n.12. The Mancusi decision discussed within this footnote was cited

for the “indicia of reliability” standard in Bazemore. See Bazemore, 614

A.2d at 687 (“As we noted in Mangini, the exception for admission of prior

testimony is “predicated on the ‘indicia of reliability’ normally afforded by

adequate cross-examination.”); Mangini, 425 A.2d at 739 (citing Mancusi).)

6 We may have concluded otherwise if Lubinsky were the only source of

evidence inculpating Appellee. Significantly, the Commonwealth offers in its

brief that Lieutenant Rensel’s testimony that Lubinsky was still a suspect is no

longer accurate. “The Commonwealth would also have Lt. Rensel explain that

he would consider Jonathan Lubinsky a suspect until the results of DNA

[a]nalysis cleared him. And that is what happened some months after the

preliminary hearing.” Commonwealth’s Brief at 21. We cannot make any

judgments about what the DNA analysis may show. We simply accept the

Commonwealth’s representations as officers of the court that Lubinsky’s

testimony is not the only evidence linking Appellee to the murder.

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is, according to the Commonwealth, from 2011.7 More importantly, the

burglary conviction has no obvious connection to Lubinsky’s motivation for

testifying in the absence of a potential parole violation. As with Lubinsky’s

admission to his criminal history, Lubinsky admitted that he was on probation.

The third reason, which builds off the second, is that the impeaching

character of the crimen falsi offenses is rather minimal when one considers

that Lubinsky freely admitted to having a criminal history. The preliminary

hearing transcript reveals the following exchange on direct examination.

Q. Okay. Now, fair to say that you didn’t stay to render aid,

correct?

A. No, I did not. I got scared.

Q. And their apartment is pretty close to the Butler City Police

Station; is it not?

A. Yes, it is.

Q. You didn’t stop there either?

A. No.

Q. You didn’t call 911 either?

A. I didn’t have a working phone.

Q. You didn’t attempt to call 911 or contact the police?

A. No.

Q. Why not?

A. Like I said, I was scared. I didn’t know what – or what, like, I

just witnessed. I mean, I was in shock, too, so …

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7 The parties do not list any docket numbers. We consulted the

Commonwealth of Pennsylvania Case Management System and discovered a

conviction from 2011 for criminal trespass, 18 Pa.C.S. § 3503(a)(1)(ii).

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And, I mean, I’m -- with my criminal history, I really don’t like

police involvement anyway, so I was like – I just crossed my

fingers and hoped everything was okay.

N.T., 8/5/20, at 13-14.

Lubinsky also admitted that he was on probation and that he checked

himself in to a psychiatric facility instead of obtaining a phone:

Q. In fact, you’re on probation; are you not?

A. Yes, I am.

Q. So you leave, and where did you go from there?

A. I walked up and down Main Street pretty much all night

because I couldn’t sleep and, like, I had nowhere to stay that night

now that all that happened. I just couldn’t sleep because I had all

that running through my head.

And then early that morning, I walked up to the hospital and

201’d[8] myself and ended up on 3 North.

Id. at 14.

Considering that Lubinsky freely admitted his criminal history on cross-

examination, we conclude that it is unlikely that the precise details of his

criminal history—where none of those convictions has any apparent

connection to Appellee’s charges—would have added so much value that the

material must be deemed “vital.”

The fourth and final reason is that Lubinsky may still be impeached via

other means, including stipulations to Appellee’s record of crimen falsi

convictions. Those convictions are obviously relevant to his truthfulness and

the fact-finder’s determination of whether Lubinsky’s version of events is

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8A 201 refers to voluntary inpatient commitment for mentally ill persons. 50

P.S. § 7201.

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credible. Indeed, the trial court’s conclusion that Smith precludes the

possibility of stipulations as an adequate substitute for direct cross-

examination is inconsistent with Cruz-Centeno. “Perez’s juvenile record was

introduced into evidence and was considered by the trial court in assessing

the credibility of the unavailable witness. As such, the trial court was aware

of the potential that Perez may have been testifying against [the] appellant

out of an expectation for leniency in his own pending case.” Cruz-

Centeno, 668 A.2d at 544 (emphasis added). Appellee’s interpretation of

Smith would create a per se rule that any pending criminal charge, no matter

how minor, or any future discovery of a criminal record, even if the

Commonwealth itself lacked the information, would mandate a conclusion that

the defendant lacked a full and fair opportunity to cross-examine. Our

precedents do not interpret Bazemore so broadly.

That impeachment via these other means is an adequate substitute is

partially corroborated by our Supreme Court’s decision in Paddy, which dealt

with a situation where the cross-examination at the preliminary hearing only

partly addressed the witness’ criminal history. “[C]ontrary to Paddy’s

assertion on appeal, preliminary hearing counsel had obtained at least a

portion of Roussaw’s criminal history and put it to effective use.” Paddy, 800

A.2d at 313. The jury learned of Roussaw’s entire criminal record by

stipulation of the parties. Id. at 314 n.13. While counsel here was unaware

of Lubinsky’s criminal history at all, Lubinsky admitted to having a criminal

record.

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We therefore conclude that the Appellee had a full and fair opportunity,

in that the stipulations present an adequate substitute for her inability to

cross-examine Lubinsky. Moreover, Appellee could have simply asked

Lubinsky to explain what that criminal history was as it appears counsel “was

not precluded from pursuing any line of inquiry” during cross-examination.

Cruz-Centeno, 668 A.2d at 545. In terms of the “opportunity” component

of the Bazemore formulation, preliminary hearing counsel was free to explore

this matter but declined to do so.

IV.

We emphasize that our ruling is quite narrow: the trial court erred in

excluding the evidence on the grounds that Appellee lacked a “full and fair

opportunity” to cross-examine Lubinsky. Our conclusion is limited to that

point, and we explicitly decline to address two other points raised by the

Commonwealth: that Appellee’s counsel was on constructive notice of the

impeachment material and the related argument that the preliminary hearing

cross-examination was constitutionally effective. We briefly elaborate on

those points.

Beginning with the notice issue, it is not entirely clear if the

Commonwealth asks this Court to adopt a rule that criminal records are

inherently publicly available and therefore a defendant always has the

required “opportunity” to confront a witness with prior convictions, or whether

the Commonwealth is focusing on the particular facts of this case, in which

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Appellee’s appointed counsel worked for the Butler County Public Defender’s

Office, which represented Lubinsky on many of his convictions.

We find that the caselaw offers no clear answer on this issue. Our

Supreme Court has held that for purposes of Brady v. Maryland, 373 U.S.

83 (1963), criminal histories are a matter of public record. See

Commonwealth v. Walker, 36 A.3d 1, 10 (Pa. 2011) (approvingly citing the

PCRA court’s conclusion that “the victim’s criminal history was a matter of

public record and thus available to the defense”); see also Commonwealth

v. Tharp, 101 A.3d 736, 752 (Pa. 2014) (“Initially, as noted by the

Commonwealth and the PCRA court, [the a]ppellant’s allegations relating to

the suppression of medical and/or criminal records fail as they could have

been obtained by subpoena from non-governmental sources.”) (quoting

Commonwealth v. Spotz, 896 A.2d 1191, 1248 (Pa. 2006) (“It is well

established that no Brady violation occurs where the parties had equal access

to the information or if the defendant knew or could have uncovered such

evidence with reasonable diligence.”) (internal citation omitted)).9

____________________________________________

9 Several federal courts disagree with this conclusion. See, e.g., Dennis v.

Sec’y, Pennsylvania Dep’t of Corr., 834 F.3d 263, 290 (3d Cir. 2016)

(observing that “the United States Supreme Court has never recognized an

affirmative due diligence duty of defense counsel as part of Brady”); United

States v. Price, 566 F.3d 900, 912 (9th Cir. 2009) (holding that nondisclosed

evidence of “star witness” criminal history constituted a Brady violation);

United States v. Young, 20 F.3d 758, 764 (7th Cir. 1994) (concluding that

the prosecution complied with Brady when it “diligently searched the

pertinent criminal records” and disclosed that material to defense).

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Insofar as Bazemore applies only when the Commonwealth withholds

the vital impeachment evidence, it is not clear how our Supreme Court’s

Brady holdings factor into the analysis. Additionally, the Bazemore Court

was careful to note that it was “mindful of the rules of discovery governing

criminal prosecutions and by our holding today do not seek to abrogate those

rules.” Bazemore, 614 A.2d at 688. In United States v. Ruiz, 536 U.S.

622, 633 (2002), the United States Supreme Court held that the United States

Constitution “does not require the Government to disclose material

impeachment evidence prior to entering a plea agreement with a criminal

defendant.” Since Pennsylvania law holds that the prosecution is under no

obligation to disclose criminal history because that history is publicly

accessible, it is unclear what obligations the Commonwealth has to disclose

the same at a preliminary hearing, especially in cases where there is no reason

to expect that the witness will become unavailable. Cf. Paddy, 800 A.2d at

313 (“In the present case, Paddy does not allege that the Commonwealth

affirmatively withheld the information in question.”). On the other hand, this

point cuts both ways, as defense counsel cannot be expected in most cases to

anticipate that a witness will be unavailable by the time of trial. Moreover,

while counsel has a motivation to develop testimony at a preliminary hearing,

credibility is not ultimately at issue during the preliminary hearing. As a result,

counsel arguably has little reason to ascertain a witness’ criminal history prior

to a preliminary hearing. Therefore, we simply decline to address this part of

the Commonwealth’s argument and rest our holding on the grounds that

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adequate measures exist that will protect Appellee’s rights under the

circumstances of this case.

Second, and relatedly, we make no finding that preliminary hearing

counsel effectively cross-examined Lubinsky. See Commonwealth’s Brief at

13 (“Defense Counsel had a full opportunity to conduct, and did in fact,

conduct a full and effective cross-examination of Jonathan Lubinsky.”).

Whether Appellee had a “full and fair” opportunity to cross-examine Lubinsky

is distinct from the question of whether that cross-examination was effective,

and nothing in our opinion addresses whether counsel’s cross-examination

was effective. Along these same lines, the Commonwealth’s argument that

counsel should have known to investigate Lubinsky based on counsel’s own

experience would serve to undermine Appellee’s confrontation rights in her

individual capacity. It is not clear why Appellee should be punished due to

the happenstance that her appointed counsel has special reason to know

information about a witness. The Commonwealth’s arguments go towards

whether counsel provided effective assistance. We decline to merge the two

distinct constitutional issues.

Similarly, the right to confront one’s witnesses is simply one component

of a defendant’s ability to present a defense. “Whether rooted directly in the

Due Process Clause of the Fourteenth Amendment or in the Compulsory

Process or Confrontation Clauses of the Sixth Amendment, the Constitution

guarantees criminal defendants ‘a meaningful opportunity to present a

complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006).

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Thus, our decision does not rule out the possibility that admitting the

preliminary hearing testimony, while not violating Appellee’s constitutional

right to confront Lubinsky, may ultimately deprive Appellee of her right to

present a full defense depending on whatever else occurs at trial. This appeal

was taken as of right prior to any trial in this matter, and we therefore have

no ability to ascertain, among other points, whether the Commonwealth’s case

hinges on the testimony of Lubinsky or whether whatever stipulations the

Commonwealth agrees to are adequate. We therefore limit our analysis to

the trial court’s resolution of the Bazemore issue.

Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judge Kunselman joins this opinion.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2023

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