J-S45009-19

2019 PA Super 339

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

CHENG JIE LU,

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2658 EDA 2017

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.*

DISSENTING OPINION BY MURRAY, J.: FILED NOVEMBER 13, 2019

I respectfully dissent. While I agree that it was error for the trial court 

to admit the out-of-court statement of an unavailable witness, I would 

conclude that the error was harmless and thus would affirm the judgment of 

sentence.

This Court has stated:

“Not all errors at trial . . . entitle an appellant to a new trial, and 

[t]he harmless error doctrine, as adopted in Pennsylvania, reflects 

the reality that the accused is entitled to a fair trial, not a perfect 

trial . . . .” Harmless error is “a technique of appellate review 

designed to advance judicial economy by obviating the necessity 

for a retrial where the appellate court is convinced that a trial error 

was harmless beyond a reasonable doubt.” “An error will be 

deemed harmless where the appellate court concludes beyond a 

reasonable doubt that the error could not have contributed to the 

verdict.”

The Commonwealth bears the burden to establish that the 

error was harmless. The Commonwealth satisfies the harmless 

error burden when the Commonwealth is able to show:

 

* Retired Senior Judge assigned to the Superior Court.
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(1) the error did not prejudice the defendant or the 

prejudice was de minimis; or (2) the erroneously 

admitted evidence was merely cumulative of other 

untainted evidence which was substantially similar to 

the erroneously admitted evidence; or (3) the 

properly admitted and uncontradicted evidence of 

guilt was so overwhelming and the prejudicial effect 

of the error so insignificant by comparison that the 

error could not have contributed to the verdict.

Commonwealth v. Green, 162 A.3d 509, 519 (Pa. Super. 2017) (citations 

omitted).

Here, the Commonwealth asserts that it was harmless error for the trial 

court to admit Police Officer Stanley Kaluza’s testimony that Xiu Xui said, in 

reference to Appellant, “[H]e’s the manager.” Commonwealth Brief at 16-17; 

see N.T. Trial, 4/11/17, at 57. In support, the Commonwealth contends that 

the trial evidence established that Appellant facilitated the transaction 

between the officer and Ms. Xui for payment for sex, where Appellant opened

the door and invited the officer in, and then led the officer upstairs and 

gestured to three women wearing lingerie.

I agree with the Commonwealth’s reasoning. I emphasize the testimony 

of Officer Kaluza, an 18-year veteran of the Philadelphia Police Department 

City Wide Vice Enforcement Unit, that his perception of Appellant as the 

manager “started with [Appellant] opening the door.” N.T. Trial, 4/11/17, at 

43, 65 (emphasis added). Officer Kaluza further testified: “Secondly, when 

[Appellant] did the open hand [gesture] and presented me the girls, that 

showed to me he was saying here you are.” Id. Officer Kaluza testified that 
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it was after the aforementioned actions that Ms. Xui indicated that Appellant 

was the manager.1

The evidence also established that while the three women spoke limited 

English, Appellant showed some proficiency. See N.T. Trial, 4/11/17, at 49-

50 (Officer Kaluza’s testimony that when he asked Appellant whether the 

officer was in the right place, Appellant responded “yes”), 62 (Officer Kaluza’s 

testimony that Xiu Xui spoke “[t]he best English”), 73 (trial court stating its 

belief that Appellant understood the proceedings because he answered 

questions prior to the interpreter finishing). Furthermore, the record showed 

that Appellant was the sole participant in the transaction who did not appear 

to be a prostitute.

2

The foregoing evidence — especially Officer Kazula’s testimony that 

facts arising prior to Ms. Xui’s statement had already led him to believe that 

Appellant was the manager — support the inference that Appellant was 

managing or supervising a prostitution business. See 18 Pa.C.S.A. § 

5902(b)(1) (promoting prostitution). Accordingly, while I agree with the 

 

1 Appellant denied any knowledge of a prostitution business. He testified that 

he had been at the house for one day, was travelling from New York to 

Chicago, his friend took him to the house and told him to wait there, and he 

did not know there were three women upstairs wearing lingerie. N.T. Trial, 

4/11/17, at 74, 78. Appellant conceded that he let Officer Kaluza into the 

house and led him upstairs, but testified that he “made [the] gesture to [the 

officer] because [Appellant] really didn’t know what was going on.” Id. at 81-

82. 

2 A fourth woman was sleeping at the house; she was not arrested. N.T. Trial, 

4/11/17, at 62.
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majority that it was error to admit Xiu Xui’s statement, I find the error to be 

harmless. See Green, 162 A.3d at 519. I would affirm the judgment of 

sentence.