J-A25010-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW JAMES VASQUEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 190 WDA 2021

Appeal from the Judgment of Sentence Entered May 11, 2020,

in the Court of Common Pleas of Washington County,

Criminal Division at No(s): CP-63-CR-0001486-2019.

BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 3, 2023

Matthew James Vasquez appeals from the 20-to-40-year judgment of 

sentence entered after a jury convicted him of aggravated assault, conspiracy 

to commit aggravated assault, and simple assault. We affirm.

This case concerns an incident on the evening of April 18, 2019, at the 

Slovak Club in Charleroi, Washington County. Seven members of the Pagans 

Motorcycle Club, including Vasquez, attacked Mr. Troy Harris, a member of 

the rival Sutar Soldiers club. Surveillance video shows the group filing into 

the club, Jason Huff (the first Pagan in line) promptly striking Mr. Harris, 

Vasquez throwing a punch, and the group moving down to the floor as the 

attack continued. Less than a minute after entering the club, the seven 

Pagans rode away. Mr. Harris was Life Flighted to treat his severe injuries.
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As the investigation into the attack progressed, the Commonwealth 

charged the seven Pagans for their involvement. The Commonwealth also 

charged Michael Barringer (Pagans National Sergeant at Arms), Brian Keruskin 

(Fayette Pagans President), Zachary Yagnich (Slovak Club Vice President), 

and Jamie Granato (Vasquez’s then fiancée).

Four of the Pagans present at the Slovak Club pled to aggravated assault 

and/or conspiracy to commit aggravated assault, as did Barringer and 

Keruskin.1 Two did not: Vasquez, who was second in line, and Joseph Olinsky, 

who was sixth. The Commonwealth consolidated its cases against Vasquez 

and Olinsky for trial.

In preparing for trial, the parties became aware of three guns that were 

in the Slovak Club during the attack. First, Mrs. Michelle Harris (Mr. Harris’ 

wife) had a gun in her purse that she had been unable to access while her 

husband was being assaulted. See N.T., Preliminary Hearing, 7/16/19, at 

128. Second, Mr. Harris had a gun in his back pocket that was recovered 

when he arrived at the hospital. See N.T., Hearing, 1/23/20, at 41. Third, 

three minutes after the Pagans had left, Mrs. Harris picked up a gun and 

holster from where the group had beaten Mr. Harris to the floor, and she put 

the gun and holster in her purse. Vasquez and Olinsky claimed that they had 

seen Mr. Harris with this third gun as they approached him.

____________________________________________

1 Keruskin entered a nolo contendere plea; the others entered guilty pleas. At 

the time of trial in this case, charges remained pending against Paul Cochran, 

a Pagan who testified for the Commonwealth.
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 The parties extensively litigated the issue of the admissibility of Mr. 

Harris’ gun before trial. At a hearing on the Commonwealth’s motion in limine, 

the trial court announced that it would exclude any reference to Mr. Harris’ 

gun “without prejudice” and revisit the issue if it became germane at trial. 

The trial court entered an order granting the motion and then a clarifying order 

following an ex parte hearing with the Commonwealth. On February 4, 2020, 

the morning of the first day of trial, Vasquez’s counsel asked the court to 

reconsider its order should Vasquez testify. The trial court ruled that it would 

not exclude the Defendants’ own testimony about Mr. Harris’ gun.

Vasquez’s former fiancée Granato testified for the Commonwealth as to 

her involvement with the Pagans and her interactions with Pagans members 

and with Slovak Club Vice President Yagnich before the attack on Mr. Harris. 

N.T., Trial Vol. II, 2/5/20, at 110–126. As detailed infra, the trial court ruled 

that Vasquez’s cross-examination of Granato “opened the door” to inquiry into 

the abusive nature of their relationship. Granato therefore testified on redirect 

that Vasquez was abusive, including a specific incident when he ripped her off 

a motorcycle and threw her onto a guardrail. The trial court instructed the 

jury that the only purpose for which it could consider this testimony was to 

help judge Vasquez’s credibility. N.T., Trial Vol. IV, 2/7/20, at 83.

Vasquez testified in his own defense. He said that Barringer had not 

told him to attack Mr. Harris; the only reason Vasquez hit Mr. Harris was that 

he saw a holstered gun on Mr. Harris’ right leg. The Commonwealth crossexamined Vasquez about his testimony that Barringer had not told him to do 
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anything. Arguing to the trial court that this testimony misled the jury and 

“opened the door” to prove a conspiracy, the Commonwealth asked Vasquez 

about how six other Pagans “pled guilty to conspiracy,” “took responsibility,” 

and were therefore “sitting in state prison.” N.T. Vol. III, 2/6/20, at 154–157. 

For each, the Commonwealth introduced into evidence the trial court’s 

sentence orders, which the jury had while deliberating.

The jury found Vasquez guilty of aggravated assault, conspiracy to 

commit aggravated assault, and simple assault. It found him not guilty of 

attempted murder and conspiracy to commit murder. The trial court 

sentenced Vasquez to an aggregate term of 20 to 40 years of imprisonment. 

Vasquez filed post-sentence motions, which the trial court denied. Vasquez 

timely appealed. Vasquez complied with Pennsylvania Rule of Appellate 

Procedure 1925(b).

Vasquez raises the following issues for our review:

I. Did the Trial Court abuse its discretion by permitting the 

testimony of Ms. Granato about the prior bad acts of the 

Appellant?

II. Did the Trial Court abuse its discretion by prohibiting any 

questions about or references to Mr. Harris possessing a gun 

on the night in question?

III. Did the Trial Court abuse its discretion by permitting the 

Commonwealth to enter into evidence the guilty pleas and 

sentence orders of non-testifying co-defendants in violation of 

the Confrontation Clause of the United States Constitution?

IV. Was the Trial Court’s sentence a palpable abuse of discretion?

Vasquez’s Brief at 6.
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I. The admission of Vasquez’s prior act was harmless error.

Vasquez first challenges the trial court’s ruling admitting Granato’s 

testimony that Vasquez was abusive during their relationship and that on one 

occasion he had ripped her off a motorcycle and thrown her to the guardrail.

This Court reviews such an evidentiary ruling for an abuse of discretion. 

Commonwealth v. Lang, 275 A.3d 1072, 1077–78 (Pa. Super. 2022). “An 

abuse of discretion is not merely an error in judgment, but an overriding 

misapplication of the law, or the exercise of judgment that is manifestly 

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by 

the evidence of the record.” Id. at 1078 (quoting Commonwealth v. 

Talbert, 129 A.3d 536, 539 (Pa. Super. 2015).

The testimony at issue arose during the Commonwealth’s case-in-chief. 

Granato testified on direct examination that because she was in a relationship 

with a Pagans member, she was called “property” and wore a “property 

patch.”2 N.T., Trial Vol. II, 2/5/20, at 116. On cross-examination, Vasquez 

asked Granato if she had a negative experience with the club (“For the most 

part, no.”) and if she and Vasquez were otherwise “living a normal life” 

(“Yes.”). Id. at 134–135. He also asked about her property patch:

Q Now, you talk about property, you had a property patch. 

Does that mean that you’re literally his property, what does 

that mean?

____________________________________________

2 Later, Maryland State Police Lieutenant Terry Katz gave expert testimony 

about Pagans “colors,” the group’s system of patches. N.T., Trial Vol. III, 

2/6/20, at 23, 32, 37–38. Granato provided the only testimony about the 

“property patch” that she had worn as Vasquez’s fiancée.
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A From what I took it as, that meant that, you know, when we 

were out at functions together, that was so everybody knew 

that you were with him.

Q It wasn’t like you were literally his property, then?

A He never treated me that way.

Id. at 135.

At sidebar before Granato’s redirect examination, the Commonwealth 

argued to the trial court that Vasquez’s questions allowed it to ask Granato 

about Vasquez abusing her.3 Granato described the abuse in camera. The 

court allowed the testimony over Vasquez’s objection and preemptive motion 

for mistrial. Granato testified:

Q Jamie, you were asked some questions by Mr. Colafella 

about your relationship with [Vasquez], right?

A Correct.

Q Was your relationship with [Vasquez] a normal, loving 

relationship?

A No.

Q Can you explain to the jury what you mean by that?

A I did not want to say anything in front of my family, because 

they don’t know any of this. He was very physically, 

mentally and emotionally abusive, for the majority of our 

relationship.

We were in one instance at a bike an[d] car show in Belle 

Vernon, with probably about 40, 50 Pagans. At the end of 

night, we were getting ready to go home, we pulled over to 

the side of the road, somebody was broken down, somebody 

needed something. Our house was not five minutes from 

____________________________________________

3 The Commonwealth also proffered that it would elicit that Granato had been 

to bar fights, based on Vasquez questioning her about whether she had a 

negative experience with the club. N.T., Trial Vol. II, at 139.
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there. So I offered to go get what we needed from the 

house.

I got on the back of another member’s bike. And [Vasquez] 

proceeded to come over and rip me off of the bike, throw 

me to the ground, hit me, and then he threw me over a 

guardrail.

Q Did you seek treatment for that?

A I did. I went to Mon Valley Hospital.

Q And in up until your relationship ended, was physical abuse 

routine with [Vasquez]?

A Normally, when he would drink.

Q What would he do?

A He would punch me, strangle me, suffocate me with a 

pillow.

Id. at 224–226.

Vasquez later testified that he did not abuse Granato as she claimed. 

The trial court instructed the jury that it could only consider Granato’s 

testimony about the abuse to judge Vasquez’s own credibility as a witness:

In this case, with regard to the Defendants, you heard 

evidence tending to show that Defendant Matthew Vasquez had 

previously been involved in some domestic incidents for which he 

is not on trial, and I’m speaking of the testimony of Jamie Granato. 

This evidence is not to be considered by you as evidence of his 

guilt. This evidence may be considered by you for only one 

purpose, and that is [to] help you judge the credibility of the 

Defendant, and the weight of the testimony given by the 

Defendant as a witness in the trial.

You must not regard this evidence as showing that the 

Defendant is a person of bad character or criminal tendencies from 

which you might be inclined to infer guilt. It’s only for the limited 

purpose that I just instructed you.

N.T., Trial Vol. IV, 2/7/20, at 83.
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The trial court explained that Granato’s testimony on redirect 

examination was admissible because Vasquez “opened the door” in crossexamining her. Trial Court Opinion, 10/13/21, at 15–18 (citing 

Commonwealth v. Gilliard, 446 A.2d 951, 954 (Pa. Super. 1982), 

Commonwealth v. Miller, 481 A.2d 1221 (Pa. Super. 1984), and 

Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011)). Because Vasquez chose 

to ask Granato about her life and her property patch, the trial court ruled that 

the Commonwealth was free to explore that subject matter.

Vasquez argues that Granato’s testimony about prior abuse was not 

admissible for any reason. Vasquez’s Brief at 20–29. He submits that his 

questions were too narrow in scope to open the door to the Commonwealth’s 

examination. Even if he had opened the door, Vasquez challenges the 

evidence as not relevant and as character evidence not admissible under 

Pennsylvania Rules of Evidence 402 and 404(b)(2). Vasquez complains that 

the trial court did not state on the record its balancing of the probative value 

and the potential for unfair prejudice under Rule 403. He further contends 

that the evidence of a collateral matter was not admissible to impeach 

Vasquez, who had not yet testified. Finally, he maintains that Rule 608(b)(1) 

prohibits the Commonwealth from attacking Vasquez’s character for 

truthfulness with extrinsic evidence about specific instances of his conduct.

The Commonwealth agrees with the trial court, arguing that Vasquez

opened the door to Granato’s cross-examination. Commonwealth’s Brief at 

10–22. It posits that it could elaborate on defense counsel’s open-ended 
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questions about her property patch, and it suggests that defense counsel’s

“normal life” question created a false impression that it could correct. 

Alternatively, the Commonwealth reasons that it could introduce evidence of 

Vasquez’s prior bad act as res gestae evidence to tell the complete story of 

Vasquez’s relationship with Granato. The Commonwealth adds that the trial 

court does not need to place its Rule 403 balancing test on the record, and 

that any objection to the jury instruction on impeachment was waived.

An initial hurdle in analyzing this issue is that the trial court’s stated 

rationale for allowing this evidence differs from its limiting instruction. As 

noted, the trial court explained its ruling that the evidence was admissible 

because Vasquez opened the door. However, it instructed the jury that the 

only reason the jury could consider Granato’s testimony that Vasquez abused 

her was to help judge Vasquez’s credibility as a testifying witness. Because 

either theory of admissibility could allow the evidence, we will address both.

“Opening the door” is a way for one party’s evidence to become 

admissible based on presentation by another party. “A litigant opens the door 

to [otherwise] inadmissible evidence by presenting proof that creates a false 

impression refuted by otherwise prohibited evidence.” Commonwealth v. 

Nypaver, 69 A.3d 708, 716–17 (Pa. Super. 2013) (citations omitted). That 

is:

[o]ne who induces a trial court to let down the bars to a field of 

inquiry that is not competent or relevant to the issues cannot 

complain if his adversary is also allowed to avail himself of that 

opening. The phrase ‘opening the door’ ... by cross examination 

involves a waiver. If [a] defendant delves into what would be 
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objectionable testimony on the part of the Commonwealth, then 

the Commonwealth can probe further into the objectionable area.

Commonwealth v. Gilbert, 269 A.3d 601, 613 (Pa. Super. 2022) (quoting 

Commonwealth v. Lewis, 885 A.2d 51, 54–55 (Pa. Super. 2005)).

Pennsylvania Rule of Evidence 404 outlines the door-opening process 

for character evidence, which is otherwise inadmissible to prove actions in 

accordance with that character. Pa.R.E. 404(a)(1). Rule 404(a)(2)(A) 

permits a criminal defendant to “offer evidence of the defendant’s pertinent 

trait, and if the evidence is admitted, the prosecutor may offer evidence to

rebut it.” In such instances, the Commonwealth’s evidence of the defendant’s 

character trait is limited to testimony about the defendant’s reputation. 

Pa.R.E. 405(a). Specifically, “[i]n a criminal case, on cross-examination of a 

character witness, inquiry into allegations of other criminal conduct by the 

defendant, not resulting in conviction, is not permissible.” Pa.R.E. 405(a)(2).

Rule 404 also provides for the admissibility of other instances of 

conduct, commonly called prior bad acts:

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is 

not admissible to prove a person’s character in order to show that 

on a particular occasion the person acted in accordance with the 

character.

(2) Permitted Uses. This evidence may be admissible for another 

purpose, such as proving motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake, or lack of accident. 

In a criminal case this evidence is admissible only if the probative 

value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1)–(2).
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Among the recognized exceptions to the prohibition on evidence of prior 

bad acts is res gestae. Under this exception, evidence of a prior bad act is 

admissible “when relevant to furnish the complete story or context of events 

surrounding the crime.” Commonwealth v. Crispell, 193 A.3d 919, 936 

(Pa. 2018) (citations omitted). Because such evidence proves the alleged 

crime’s “immediate context of happenings near in time and place,” the prior 

bad acts must be part of the same transaction. Commonwealth v. Green, 

76 A.3d 575, 584 & n.3 (Pa. Super. 2013) (citations omitted).

Here, the Commonwealth stated that Vasquez opened the door and 

created a “character issue” by trying to portray Vasquez as a boy scout, which 

created a misleading impression. N.T., Trial Vol. II, 2/5/20, at 143. We 

disagree. Even if we accepted the theory that having a “normal relationship”

is a character trait that Vasquez opened the door for the Commonwealth to 

rebut, Rule 405(a)(2) prohibits inquiry into Vasquez’s other criminal conduct 

that did not result in conviction. Vasquez was not charged or convicted for 

his conduct in allegedly throwing Granato off of the motorcycle.

Moreover, the Commonwealth’s suggestion that Vasquez ripping 

Granato from a motorcycle is res gestae evidence of the attack on Mr. Harris

fails because the incident was not part of the same transaction, instead 

occurring in a different location on a different day. Green, supra. Thus, this 

exception also fails.

To the extent that Vasquez’s questions to Granato on cross-examination 

in the Commonwealths’ case-in-chief opened the door to further examination 
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about Vasquez’s character, a prior specific instance of abuse was not 

admissible to prove that character. Pa.R.E. 405(a)(2). As such, the trial court 

misapplied the law and therefore abused its discretion when it allowed

evidence that Vasquez abused Granato under the theory that Vasquez opened 

the door.

The second theory the trial court gave for allowing Granato’s testimony 

about prior abuse was for purposes of impeaching Vasquez (who later testified 

that he did not abuse Granato). N.T., Trial Vol. III, 2/6/20, at 88–89. This 

was the only reason why the trial court instructed the jury that it could 

consider Granato’s testimony about the abuse. N.T., Trial Vol. IV, 2/7/20, at 

83.4 Putting aside that Vasquez had not yet testified when Granato 

purportedly impeached him, this theory likewise runs contrary to law.

It has long been the rule in Pennsylvania that a witness cannot be 

impeached on a collateral matter. Commonwealth v. Petrillo, 19 A.2d 288, 

295 (Pa. 1941); Commonwealth v. Guilford, 861 A.2d 365, 369 (Pa. Super. 

2004) (quoting Commonwealth v. Bright, 420 A.2d 714, 716 (Pa. Super. 

1980) (noting that “a witness may not be contradicted on ‘collateral’ matters, 

... and a collateral matter is one which has no relationship to the case at trial”). 

Pennsylvania Rule of Evidence 608(b) limits attacks of a testifying witness’

character for truthfulness with specific instances of conduct:

____________________________________________

4 The Commonwealth is correct that Vasquez waived any challenge to this 

instruction because he did not object to it. Here, we address the underlying 

evidentiary issue rather than the propriety of the instruction.
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Except as provided in Rule 609 (relating to evidence of conviction 

of crime),

(1) the character of a witness for truthfulness may not be attacked 

or supported by cross-examination or extrinsic evidence 

concerning specific instances of the witness’ conduct; however,

(2) in the discretion of the court, the credibility of a witness who 

testifies as to the reputation of another witness for truthfulness or 

untruthfulness may be attacked by cross-examination concerning 

specific instances of conduct (not including arrests) of the other 

witness, if they are probative of truthfulness or untruthfulness; 

but extrinsic evidence thereof is not admissible.

Pa.R.E. 608(b).

Here, the incident where Vasquez ripped Granato from a motorcycle is 

collateral because it is not related to the attack on Mr. Harris, nor does it 

involve Vasquez’s truthfulness. Although Vasquez later refuted Granato’s 

testimony about prior abuse, it runs contrary to law to admit Granato’s 

testimony as a preemptive challenge to Vasquez’s version of this uncharged 

incident. As such, the trial court abused its discretion in allowing this 

testimony.

However, this is not the end of the inquiry. In appropriate cases, this 

Court may assess sua sponte whether an error is harmless. Commonwealth 

v. Hamlett, 234 A.3d 486 (Pa. 2020). We do so here, recognizing the 

significant expense involved in bringing a case to trial as well as the interests 

of the parties in achieving a just resolution. For this Court to find harmless 

error, we must be “convinced beyond a reasonable doubt that the error is 

harmless.” Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978). That 

is, “the error could not have contributed to the verdict. Whenever there is a 
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reasonable possibility that an error might have contributed to the conviction, 

the error is not harmless.” Id. at 164 (internal quotation marks omitted); 

see Commonwealth v. Bieber, 283 A.3d 866, 880 (Pa. Super. 2022) 

(rejecting a case-dependent lower standard). Here, the applicable test for 

harmless error is whether “the properly admitted and uncontradicted evidence 

of guilt was so overwhelming and the prejudicial effect of the error was so 

insignificant by comparison that the error could not have contributed to the 

verdict.” Commonwealth v. Jones, 240 A.3d 881, 892 (Pa. 2020) (quoting 

Commonwealth v. Fulton, 179 A.3d 475, 493 (Pa. 2018)).” 

The uncontradicted evidence in this case included a video of Vasquez 

filing into the Slovak Club with a group of Pagans and quickly attacking Harris. 

The prejudicial effect of the error was that the jury could assess Vasquez’s 

credibility based on his prior violent acts. Even if we correct the error and 

accept Vasquez’s testimony as true, Vasquez said that he punched Harris in 

the face. He did not claim self-defense. Although Vasquez denied that he 

agreed to assault Harris, he did not contradict that he was in the group of 

Pagans that entered the Slovak Club and had beaten Harris to the floor in a 

matter of seconds.5 We conclude that the only reasonable inference from this 

evidence is that Vasquez was guilty of the offenses for which the jury convicted 

him. Therefore, the error was harmless, and we deny relief.

____________________________________________

5

In assessing the “properly admitted” evidence of guilt, we will not consider 

the admission of the co-conspirators’ pleas discussed in Part III, infra.
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II. Vasquez waived his issue about Mr. Harris’ gun.

Next, Vasquez challenges the trial court’s exclusion of evidence that Mr. 

Harris had a gun, including cross-examination of any witnesses at the Slovak 

Club and the portion of the surveillance video of Mrs. Harris retrieving the gun. 

He argues that the trial court abused its discretion by excluding defense 

evidence based on the anticipated strength of the Commonwealth’s evidence. 

Vasquez’s Brief at 30–38 (citing Holmes v. South Carolina, 547 U.S. 319 

(2006)).

Vasquez has waived this issue. Review of the litigation over the gun 

shows that that trial court initially granted the Commonwealth’s motion in 

limine to exclude such evidence “without prejudice” and recognized that it 

could reconsider:

[Vasquez’s counsel]: Your Honor, I would just submit to the Court, 

that issue may become germane at some point during the 

course of trial. So I understand the Court’s ruling, but we 

may ask to revisit that during the course of testimony.

THE COURT: Right. Very good. And I will. If it [] becomes 

germane, yes, absolutely.

[Vasquez’s counsel]: Thank you, Your Honor.

Id. at 46. The trial court entered an order granting the motion. Order, 

1/23/20, at 2 (unnumbered).

The next day, the Commonwealth filed another motion based on the 

defense proffer at the hearing, then seeking to bar “any mention at trial of 

[Mrs. Harris] being in possession of a gun on the night of the assault or [Mrs. 

Harris] as seen in the video handling a firearm.” Motion in limine, 1/24/20, 
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at 2 (unnumbered). After an ex parte hearing with the prosecutor, the trial 

court entered an order purporting to clarify its previous order:

AND NOW this 30th day of January 2020, upon motion of the 

Commonwealth, the Court hereby grants the Commonwealth’s 

Motion in Limine concerning ANY reference to a firearm being 

possessed by the victim. This order also prohibits any reference 

to a firearm being handled by the victim’s wife after the alleged 

crimes. This shall further prohibit defense counsel from asking 

questions of witnesses concerning ANY firearm, showing portions 

of the video of the Slovak Club, and still shots of the victim’s wife 

with a firearm after the alleged crime. The Court is hereby 

clarifying its previous order of January 23, 2020, granting the 

Commonwealth’s Motion to exclude reference to a firearm.

Order, 1/30/20.

The morning of trial, the parties addressed the matter further. 

Vasquez’s counsel requested that Vasquez be permitted to testify that he saw 

that Mr. Harris had a gun.6 The trial court candidly admitted that it had not 

considered that the defendants could provide their own testimony. The court 

announced that it would stand by its ruling, to revisit before the defendants 

testified. N.T., Motion, 2/4/20, at 12, 25. The trial court later revisited the 

matter and addressed counsel regarding the exclusion of the guns:

I said this morning, frankly, I’m sticking to my guns as far as 

everything else is concerned. But as far as . . . a Defendant giving 

his supposed observations in real time, not what he heard, what 

he supposedly saw, I have a hard time excluding that.

____________________________________________

6 Vasquez’s counsel clarified that this request was only for Vasquez’s own 

testimony. N.T., Motion, 2/4/20, at 6.
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N.T., Trial Vol. I, 2/4/20, at 218. Vasquez did not make any additional 

requests to question witnesses about Mr. Harris’ guns or to present the 

surveillance video to the jury.

Pennsylvania Rule of Evidence 103 provides:

(a) Preserving a Claim of Error. A party may claim error in a 

ruling to admit or exclude evidence only:

(1) if the ruling admits evidence, a party, on the record:

(A) makes a timely objection, motion to strike, or motion in 

limine; and

(B) states the specific ground, unless it was apparent from 

the context; or

(2) if the ruling excludes evidence, a party informs the court of its 

substance by an offer of proof, unless the substance was apparent 

from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. 

Once the court rules definitively on the record--either before or at 

trial--a party need not renew an objection or offer of proof to 

preserve a claim of error for appeal.

Pa.R.E. 103(a), (b).

Here, the trial court did not rule “definitively on the record” that all the 

evidence of Mr. and Mrs. Harris’ guns would be excluded. Rather, it said on 

the record that it could later reconsider its order, recognizing that trial could 

take an unexpected turn. See Commonwealth v. Hicks, 91 A.3d 47, 54 n.9 

(Pa. 2014) (“A pre-trial ruling on admissibility may help define the issues and 

the potential evidence, but the court retains the discretion to modify its ruling 

as circumstances develop or as the evidence at trial diverges from that which 

was anticipated.”).
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Notably, the trial court did reconsider its order. At the hearing the 

morning of trial, the trial court acknowledged that it had not considered that 

Vasquez could testify, and it later conceded that such testimony would be 

admissible. Vasquez did not move for the trial court to admit any other 

evidence regarding Mr. Harris’ gun, such as the video or testimony from other 

witnesses. Therefore, the trial court granted the entirety of Vasquez’s 

request—that he could personally testify to his observations.

Vasquez contends that the January 30, 2020 order is sufficiently clear 

that his earlier objections to the Commonwealth’s motion in limine should be 

preserved. However, that order merely clarified the January 23, 2020, order, 

which the court said on the record that it was granting “without prejudice.” 

Under these circumstances, the trial court had not ruled “definitively on the 

record” as contemplated by Rule 103(b). As such, Vasquez was required to 

renew his earlier offer of proof regarding additional evidence about the gun to 

preserve his evidentiary issue for review.

III. Vasquez waived his Confrontation Clause issue.

Vasquez next challenges the trial court’s admission, during his crossexamination, that six other Pagans involved in this incident, who did not testify 

at trial, entered guilty pleas to conspiracy, took responsibility, and were 

therefore in state prison. Vasquez’s Brief at 38–46; see N.T. Vol. III, 2/6/20, 

at 154–157. He contends that this violated his rights under the Confrontation 
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Clause, as illustrated by the recent case of Hemphill v. New York, 142 S. 

Ct. 681 (2022).

Vasquez has waived this issue. At sidebar, when the Commonwealth 

announced its intent to introduce this evidence, Vasquez’s counsel did not 

object. He stated:

Your Honor, my client’s position is that [Barringer] never 

commissioned him. That conversation never happened, and he 

testified to the fact that these gentlemen pled guilty to these 

charges. [If t]he Court thinks it appropriate, he can ask him about 

it, if he wants to. They made that decision [to plead guilty].

And I mean, from my standpoint, they’re all charged with 

conspiracy. The fact that they pled guilty, I really don’t want to 

argue that point, but I understand it’s relevant. I don’t know.

Id. at 145. 

Because Vasquez did not make a timely objection or motion to strike, 

he cannot now claim error in the trial court’s allowing this evidence. Pa.R.E. 

103(a)(1).

IV. Vasquez’s sentence is not an abuse of discretion.

Finally, Vasquez contends that the trial court abused its discretion in 

imposing the maximum possible sentence, an aggregate of 20 to 40 years of 

imprisonment. Vasquez’s Brief at 46–60.

Challenges to the discretionary aspects of sentence are not 

appealable as of right. Commonwealth v. Leatherby, 116 A.3d 

73, 83 (Pa. Super. 2015). Rather, an appellant challenging the 

sentencing court’s discretion must invoke this Court’s jurisdiction 

by (1) filing a timely notice of appeal; (2) properly preserving the 

issue at sentencing or in a motion to reconsider and modify the 

sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a 

separate section of the brief setting forth a concise statement of 
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the reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of a sentence; and (4) presenting a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or 

sentencing norms. Id. An appellant must satisfy all four 

requirements. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. 

Super. 2013).

Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022). In 

determining whether an appellant has raised a substantial question, we “focus 

on the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the 

merits.” Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) 

(en banc).

Vasquez complied with the first three requirements to invoke this 

Court’s jurisdiction over his sentencing claim. As to the fourth requirement, 

Vasquez claims that the sentencing court imposed an unreasonably excessive 

sentence, did not sufficiently state its reasons for doing so on the record, 

caused an unduly harsh result by imposing consecutive sentences, and relied 

on impermissible factors. We accept that this presents a substantial question

and thus proceed to the merits.

This Court will vacate an above-guidelines sentence only if “the sentence 

is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). We review a challenge to the 

discretionary aspects of sentencing mindful of the following standard of 

review:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 
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of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 2022) 

(quoting Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa. Super. 2019)). 

Vasquez argues that the sentencing court abused its discretion in 

imposing an aggregate 20-to-40-year term of imprisonment in several ways. 

First, he claims that the court failed to state or consider the applicable 

sentencing guidelines, and it treated Harris’ severe injuries as exceeding those 

contemplated in the guidelines. Second, he claims that the court failed to 

consider his prior record score of zero and his lack of a history of violence. 

Third, he challenges the court’s treatment of his testimony and subsequent 

silence as a failure to take responsibility, in light of his intent to preserve his 

case for appeal after exercising his right to trial.

The Commonwealth responds that the sentencing court was free to 

depart from the sentencing guidelines, as it placed its reasons for doing so on 

the record. It notes that, among other appropriate factors, the sentencing 

court considered Vasquez’s violation of the court’s no-contact order while 

awaiting his sentence. It concludes that Vasquez’s sentence was reasonable.

The sentencing court explained at the time of sentencing why it was 

imposing a long sentence:

[Q]uite frankly, I’ve never seen anything like this. I’ve never seen 

not only this total lack of remorse but total lack of responsibility. 

Every single person—according to Mr. Vasquez, every single 

person that testified was lying including the—his fellow members, 
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particularly Mr. Cochran, and all the other Codefendants that took 

responsibility, admitted their guilt, showed remorse. They must’ve 

all been lying when they did that according to [Vasquez].[7] The 

other bystanders from the club must’ve been lying as well. Of 

course, Mr. Katz, the expert, had to have been lying because he 

defined—he set forth all the reasons why the Pagans are an outlaw 

motorcycle gang engaged in criminal activity. But to Mr. Vasquez 

this was a brotherhood of guys who ride motorcycles and engage 

in charitable activities, so he was way off base according to you, 

Mr. Vasquez.

And then, of course, your friend, Zachary Yagnich, ... was 

not being truthful because your testimony was at odds with his 

testimony. And of course the—your former fiancé[e], Ms. 

Granato, you’ve completely disparaged and indicate that she’s 

lying, not only about this incident but the prior history of violence 

that you had between the two of you. And finally, the biggest liar 

of all is the videotape because the videotape is completely 

different from your testimony.

And ... your Facebook post was attached to the presentence 

investigation, and frankly, ... I always take these Facebook posts 

with a grain of salt. I’m not into it. I know that you were in jail 

so you weren’t—I wondered how you could be directly responsible 

for a Facebook post, but then I hear you on tape dictating it, 

asking your parents if they saw it, and did you get any favorable 

comments to it. This is the farthest thing from any kind of 

remorse, responsibility, or any demonstration that you have the 

ability to be rehabilitated. You’re on the videotape or video talking 

about the future of the Pagan organization, and how it’s going to 

go when you get out. You’re wishing harm on the other witnesses. 

And then there you are laughing with your Pagan friends on video 

while they’re at the bar. And it’s beyond just being disgruntled 

and upset about the verdict. And this continued up until—through 

April, the most recent one was April 18th.

For all these reasons, the Court feels that it is necessary to 

depart from the sentencing guidelines. I have to take into account 

the protection of the public. And again, this was in a public place, 

____________________________________________

7 The Commonwealth had cross-examined Vasquez about whether the other 

witnesses were lying. See Commonwealth v. Yockey, 158 A.3d 1246, 1256 

(Pa. Super. 2017). Because Vasquez did not object to this line of questioning, 

we find that it was appropriate for the sentencing court to consider it.
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while on video, directly going toward the victim. Taking into 

account the protection of the victim and his family, the 

rehabilitative needs of the Defendant, which again I—you’ve 

demonstrated through your—from the outset and even after the 

verdict that—I don’t see any potential for rehabilitation. The 

gravity of the offense, and the nature of the impact on the life of 

the victim and his family, it goes beyond aggravated—even 

though the jury found serious bodily injury, this is beyond that. 

This is beyond the protracted loss of an organ or vital bodily 

function. Mr. Harris nearly passed away and by all accounts will 

never be the same. And he’ll never have the enjoyment of his 

family or be able to support his family again. All of your letters 

indicated what a family man you are and how your family needs 

you. Well, his needs him too, and he’ll never again be available.

And yes, your—despite what you told the jury about the 

others just wishing to take a plea because they knew they were 

going to be railroaded, each expressed remorse for the victim’s 

family, and knew that this was a terrible thing that they had done 

to him and his family. And for those reasons, the Court—seeing 

the need to provide for the protection of the public, the lack of any

rehabilitative potential for the Defendant, the gravity of the 

offense, the effect [on] the life [of] the victim and his family and 

the community, and the protection of the public, the other 

witnesses, and the general public, the Court will depart from the 

sentencing guidelines . . . .

N.T., Sentencing, 5/22/20, at 24–27.

In its opinion on appeal, the sentencing court further explained its 

reasons for deviating from the sentencing guidelines:

First, [Vasquez] showed a complete lack of remorse for his actions 

and refused to take any sort of responsibility for his role in the 

assault of [Harris]. At the sentencing hearing, the Commonwealth 

played numerous video recordings of [Vasquez] from the 

correctional facility to his family and friends wherein [Vasquez] 

was laughing, downplaying the assault, and mocking the justice 

system. [In the recordings, Vasquez dictates] a Facebook post to 

his parents by which he is dismissing his guilt. [Vasquez] also 

makes several graphic comments wishing harm on witnesses

Jamie Granato and Paul Cochran for testifying at his trial. On one 

video call, [Vasquez] is communicating with other Pagan members 

at a bar, laughing, and talking about his future with the Pagans, 
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despite his bond condition prohibiting contact with any member of 

the Pagans. [Vasquez’s] lack of remorse and inability to take any 

responsibility for his actions justified the court’s departure from 

the sentencing guidelines.

Furthermore, the court found that [Vasquez’s] behavior 

demonstrated that he is not amen[]able to rehabilitation. 

Accordingly, a lengthy term of incarceration was warranted to 

protect [Harris] and the community. The court must also consider 

that the victim in this instance was assaulted so severely that he 

nearly died and his life had been irreparably changed due to the 

actions of [Vasquez] and his co-defendants.

Trial Court Opinion, 10/13/21, at 46.

We conclude that the sentencing court did not abuse its discretion. It 

indicated that it reviewed the presentence investigation report, which would 

include both Vasquez’s prior record score and the appropriate sentencing 

guidelines. See Bankes, 286 A.3d at 1307 (citing Clemat, 218 A.3d at 959–

60). As to the treatment of the Pagans who were sentenced pursuant to plea 

agreements, we note that such defendants are not similarly situated for 

sentencing purposes; therefore, Vasquez’s comparatively harsher sentence 

does not demonstrate that he was punished for exercising his constitutional 

rights. Commonwealth v. Ali, 197 A.3d 742, 764 (Pa. Super. 2018) (citing 

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)), appeal 

denied, 652 Pa. 269 (Apr. 30, 2019). Because Vasquez has not shown that 

the sentencing court abused its discretion, we will affirm his judgment of 

sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/3/2023