J

- S45009

- 19 2019 PA Super 339

COMMONWEALTH OF PENNSYLVANIA ,

Appellee

v. CHENG JIE LU, Appellant : : : : : : : : : 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 1 3 , 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

concl ude 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 appe llate 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 Commonwe alth is able to show:

* Retired Senior Judge assigned to the Superior Court.J

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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 evi dence; 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 5 09 , 519 (Pa. Super. 20 17 ) (citations omitted). Here, the Commonwealth asserts that it was harmless error for the trial court to admit Police Officer Stanley K aluza’s testimony that Xiu Xui said, in reference to Appellant, “[H ] e’s the manager.” Commonwealt h 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, t hat 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 present ed me the girls, that showed to me he was saying here you are.” Id. Officer Kaluza testified thatJ

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i t was after t he aforementioned actions that Ms. Xui indicated that Appellant

was the mana ger. 1

Th e 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 t he
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). Furthermor e, 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 be lieve 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 h im 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.J

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majority that it was error to adm it Xiu X u i ’s statement, I find the error to be

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

sentence.