Com. v. Royster, K. ( 2021 )

J-A01007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYREE KHALIL ROYSTER :
:
Appellant : No. 2705 EDA 2019
Appeal from the Judgment of Sentence Entered August 16, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001415-2017
BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 12, 2021
Appellant, Kyree Khalil Royster, appeals from the judgment of sentence
of 21-42 years’ incarceration, imposed following his conviction for sexual
offenses against a minor. After careful review, we affirm.
The trial court provided the following summary of the facts adduced at
Appellant’s trial, as well as the procedural history of this case, as follows:
A. Factual History
On or about December 2, 2016, [Appellant] performed oral sex
on, and received oral sex from, his thirteen[-]year[-]old cousin
(“J.C.”) in the Philadelphia home of family member, Lawrence
Curti[z] Ingram (“Uncle Curtiz”).1 J.C. did not immediately
disclose the sexual assault.2 Then, in the early morning hours of
January 23, 2017, while asleep in his bedroom on the third floor
of the home he shared with his mother (“[A.D.]”) and older sister
at 17 West Oak Street, in Norristown, Montgomery County,
Pennsylvania, J.C. was awakened by [Appellant’s] stroking J.C.’s
penis.3 Despite J.C.[’s] repeatedly telling him to leave,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A01007-21
[Appellant] refused, told J.C. he “needed this,” and after
performing oral sex on J.C., [Appellant] forced J.C. to perform oral
sex on him by pushing J.C.’s head down to his penis. J.C. choked
and began to cry as [Appellant] held his head down, and then J.C.
used his hand to stroke [Appellant]’s penis until [Appellant]
ejaculated.4 [Appellant] then forced J.C. to insert J.C.’s penis into
[Appellant]’s anus. When [Appellant] finished sexually assaulting
J.C., [Appellant] dressed and left by climbing back out of the 3rd
floor bedroom window through which he surreptitiously entered
without permission earlier.5
1 Born [in] 1994, [Appellant] is eight … years and two …
months older than his cousin, J.C.[] See N.T., 5/29/19, at
99, 126-38, 167; N.T., 5/30/19, at 270; N.T., 8/16/19, at
53. To conceal [the] victim’s identity, his initials are
substituted for his name throughout the entirety of the
notes of testimony herein cited.
2 N.T., 5/29/19, at 126-38, 158, 201, 215-24.
3Id. at 102-65. J.C. was fourteen years old on January 23,
2017.
4 Id. at 144.
5 Id. at 138-46, 153-58, 224-31, … Ex. C-11 to C-17
(Photographs). [Appellant], who had been in the process of
building a gazebo for [A.D.] (his aunt) [in the] winter of
2016-[]17, had used the ladder in her backyard to access
J.C.’s third floor bedroom window.
Stunned, hating himself for not defending himself and crying, J.C.
immediately showered, hitting himself, and pulling out chunks of
his own hair as he struggled to come to terms with the reality of
the attack.6 Then, in the predawn darkness, J.C. woke his mother.
Terrified and stuttering, he told his mother that [Appellant] “came
at him again.’’7 [A.D.] immediately called [Appellant]…, whose
cell phone pinged off of the cell towers within a mile of J.C.’s
home, (refuting [Appellant]’s later alibi claim asserted before trial
that he was in Skippack, Montgomery County.8) When he did not
answer, she continued calling, but [Appellant] never answered.9
6 N.T., 5/29/19, at 146.
7 Id. at 210-12.
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8 [Appellant]’s Notice of Alibi, 10/20/17, at ¶ 2; N.T.,
5/29/19, at 218; N.T., 5/31/19, at 245-62, at Ex. C-53
(Power Point of Cell Site Mapping) (Reflecting [Appellant]’s
cell phone received several calls from [A.D.], starting at
4:10 am, and “hitting off of” and/or connecting to the cell
site that covers the area of Selma Street and Stanbridge
Street, contrary to his prior alibi defense. N.T., 8/6/18, at
16.
9 N.T., 5/29/19, at 222.
The following day, the Norristown Police Department commenced
its investigation after receiving [A.D.]’s report, and ultimately,
less than a week before trial began, J.C. disclosed an additional
incident in which [Appellant] sexually abused J.C. at his Uncle
Curtiz’s home in Philadelphia, Pennsylvania.10 J.C. admitted
initially withholding disclosure of those incidents out of concern he
would no longer be permitted to visit his Uncle Curtiz, who[m] he
views as a father figure and would visit every other weekend.11
Thereafter, the Montgomery County District Attorney’s Office
obtained a McPhail[1] letter from the Philadelphia District
Attorney’s Office, enabling Montgomery County to prosecute
[Appellant] for his above-referenced December 2016 sexual
assault of J.C. in Philadelphia.12
10 Id. at 118-68.
11 Id. at 201, 215-24.
12See Commonwealth’s Motion to Amend, 7/25/18, at ¶ 5,
Ex. C-1 (McPhail letter).
[T]he above-described assaults were not the first occasion on
which [Appellant] sexually assaulted his young cousin, J.C. When
[Appellant] was himself a juvenile, he confessed and was
adjudicated delinquent on one count of rape of a child (F1),
incorporating four (4) instances of his anal rape of J.C., who was
just six (6) and seven (7) years old at the time.13 Furthermore,
by virtue of his adjudication, and placement in juvenile detention,
[Appellant] had no access to J.C. from May 11, 2010 to the end of
March 2014.14
____________________________________________
1 See Commonwealth v. McPhail, 692 A.2d 139 (Pa. 1997) (plurality),
superseded by statute, Act of June 28, 2002, P.L. 481, No. 81, § 1.
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13 N.T., 5/29/19, at 106-222.
14 Id. at 117.
B. Procedural History
The Commonwealth ultimately charged [Appellant] as follows[]:
Count One (Burglary - Threaten to Commit Bodily Injury), Count
Two (Statutory Sexual Assault - 11 years older), Count Three
([Involuntary Deviate Sexual Intercourse (“IDSI”)] - Child Less
Than 16 Years of Age), Count Four (IDSI - Child Less Than 16
Years of Age), Count Five (IDSI - Child Less Than 16 Years of
Age), Count Six (Unlawful Contact or Communication with Minor),
Count Seven (Unlawful Contact or Communication with Minor),
Count Eight (Criminal Trespass[]), Count Nine (Corruption of
Minors), Count Ten (Indecent Assault - Without Consent of Other),
Count Eleven (Indecent Assault - Forcible Compulsion), and Count
Twelve (Indecent Assault - Person Less Than 16 Years of Age).[2]
On September 29, 2017, the Commonwealth filed a Motion to
Admit Evidence of [Appellant]’s Prior Bad Acts, to which
[Appellant] responded by filing an Objection to Commonwealth’s
Prior Bad Acts Motion. On October 4, 2017, the Honorable Gary
S. Silow heard argument on the Commonwealth’s Motion, and
granted the Motion, stating, “I am going to rule that the testimony
is relevant, it is not unduly prejudic[ial], and I am going to permit
that prior bad act to come in.”[3] Thereafter, the matter was
further litigated by defense motions to reconsider filed
respectively on July 24, 2018, (denied by Order dated August 2,
2018) and May 17, 2019, denied by Order dated May 24, 2019,
providing as follows:
[I]t is ORDERED that the Motion is DENIED, in part, to the
extent that the Commonwealth shall be permitted to
introduce: testimony of minor victim, J.C.[,] regarding
[Appellant]’s prior sexual abuse of J.C., as well as,
[Appellant]’s admission and adjudication of delinquency for
one count of rape of a child (F1), incorporating four (4)
____________________________________________
2 See 18 Pa.C.S. §§ 3502(a)(1)(i), 3122.1(a)(2), 3123(a)(7), 6318(a)(1),
3503(a)(1)(ii), 6301(a)(1)(ii), 3126(a)(1), 3126(a)(2), 3126(a)(8),
respectively.
3 N.T., 10/4/17, at 33.
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instances of his anal rape of J.C., introduced as certified
copies of court records.
It is further ORDERED that disposition of the Motion as to:
testimony of Detective David Mazza and/or former Detective
Grozinski regarding the confession taken from [Appellant]
on May 3, 2010, is RESERVED, until time of trial, for
consideration by the [c]ourt of its potentially cumulative
and/or excessive prejudicial nature. This Order does not
address the admission of said evidence for impeachment
purposes, a determination of which will be considered if and
when the Commonwealth seeks admission for such purpose.
To the extent that the Commonwealth seeks to introduce
any of the above-referenced evidence under the “lustful
disposition” exception, and in response to its related
Request for the [c]ourt to so instruct the jury, even
assuming said evidence might be admissible thereunder,
given the other potentially permissible bases for admission,
including, but not limited to, res gestae and/or intent, the
[c]ourt declines to so instruct the jury; the use of said
instruction being unnecessary, and therefore, overly
prejudicial.1
1 See Pa.R.E. 404(b)(2).
Thereafter, on May 17, 2019, [Appellant] filed a Motion to Dismiss
Pursuant to [Pa.R.Crim.P.] 600. The Commonwealth filed its
Answer thereto on May 21, 2019, and by Order dated May 24,
2019, after hearing and argument, the [c]ourt denied
[Appellant]’s Motion to Dismiss.
[]On May 17, 2019, [Appellant] filed a Praecipe to Withdraw the
Notice of Alibi Defense, previously asserted in October 2017,
which the [c]ourt subsequently granted.[]
On May 28, 2019, [Appellant] proceeded to a four (4) day trial,
wherein the Commonwealth proceeded on [Counts One, Three,
Four, Five, and Nine]. At the conclusion of [trial,] the jury
convicted him [of each of those offenses].
On August 16, 2019, the undersigned conducted a sentencing
hearing at which the Commonwealth introduced [Appellant]’s
juvenile records, and called [Appellant]’s Juvenile Probation
Officer, Robert Smith, to testify.26 [Appellant]’s older brother,
Anthony Clay took the stand on behalf of [Appellant], and testified
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that [Appellant,] who[m] he described as very intelligent, and
caring, had a “fairly good” childhood until age ten[,] when he was
sexually victimized by one of his cousins. Thereafter, [Appellant]
declined to execute his right to allocution.27
26N.T., 8/16/19, at 13-58; Exs. C-2 to C-14 (Juvenile
Records).
27 N.T., 8/16/19, at 41.
At the hearing’s conclusion, having previously reviewed
[Appellant]’s Presentence Investigation (PSI) report, Probation
and Parole Intervention Evaluation (PPI), and Sexual Offender
Assessment, which determined that [Appellant] presented as
having an above-average risk of reoffending, and based on its
determination that the underlying incidents constituted three
separate events, the [c]ourt imposed its sentence, as follows:
Count One…, imprisonment for not less than four (4) years nor
more than eight (8) years, to run concurrent to the sentence on
Count Three; Count Three…, imprisonment for not less than six
and one-half (6½) nor more than thirteen (13) years (to date from
January 28, 2017); Count Four…, imprisonment for not less than
seven (7) nor more than fourteen (14) years, to run consecutive
to the sentence on Count Three; and Count Five…, imprisonment
for not less than seven and one-half (7½) nor more than fifteen
(15) years, to run consecutive to the sentence on Count Four. In
sum, the [c]ourt sentenced [Appellant] to an aggregate of twenty-
one (21) to forty-two (42) years of incarceration, in addition to a
variety of conditions, including but not limited to, no contact with
the victim.29 Before remanding [Appellant], the [c]ourt
specifically advised him as to both his post[-]sentence, and
appellate rights, and confirmed that [Appellant] wished to proceed
with the aid of appointed counsel.30
29 N.T., 8/16/19, at 46-51.
30 Id. at 51-53, Ex. D-1 (Post Sentence Procedures).
On September 10, 2019, [Appellant] timely filed a Notice of
Appeal challenging the imposition of his sentence.
Trial Court Opinion (“TCO”), 4/13/20, at 1-6 (citations reformatted, some
footnotes omitted).
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Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement, and
the trial court issued its Rule 1925(a) opinion on April 13, 2020. Appellant
now presents the following questions for our review:
1. Did the trial court err in failing to grant Appellant’s motion to
dismiss the information pursuant to Rule 600…?
2. Did the trial court err in failing to grant a mistrial following an
outburst in front of the jury from the complaining witness’s
mother, where she exited the witness stand and exclaimed at the
Appellant that he needed to admit what he had done and the trial
court failed to give a cautionary instruction until the following
morning?
3. Did the trial court err in admitting prior bad acts evidence from
an incident that occurred when [A]ppellant was a juvenile, six
years prior to this offense?
4. Did the trial court err in admitting [a] statement Appellant gave
to police in relation to the juvenile prior bad acts from six years
prior to the charges leading to his conviction?
5. Did the trial court err in permitting the Commonwealth to
amend the bills of information at the start of trial to include an
incident which was disclosed less than one week prior to
commencement of trial?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Rule 600
Appellant first claims that the trial court abused its discretion when it
denied his motion to dismiss his prosecution pursuant to Rule 600, asserting
that the Commonwealth did not act diligently in bringing his case to trial within
365 days. As our Supreme Court has explained:
When reviewing a trial court’s decision in a Rule 600 case, an
appellate court will reverse only if the trial court abused its
discretion. See Commonwealth v. Selenski, 994 A.2d 1083,
1087 (Pa. 2010). “An abuse of discretion is not merely an error
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of judgment, but if in reaching a conclusion the law is overridden
or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will
... discretion is abused.” Id. (internal citation omitted). Our
scope of review is limited to the record evidence from the Rule
600 hearing and the findings of the lower court, viewed in the light
most favorable to the prevailing party. See id.***
We have explained that Rule 600 has the dual purpose of both
protecting a defendant’s constitutional speedy trial rights and
protecting society’s right to effective prosecution of criminal
cases. [Id.] at 1088; Commonwealth v. Dixon, 907 A.2d 468,
473 (Pa. 2006). To protect the defendant’s speedy trial rights,
Rule 600 ultimately provides for the dismissal of charges if the
Commonwealth fails to bring the defendant to trial within 365 days
of the filing of the complaint (the “mechanical run date”), subject
to certain exclusions for delays attributable to the defendant.
Pa.R.Crim.P. 600(A)(3), (G). Conversely, to protect society’s right
to effective prosecution prior to dismissal of charges, “[R]ule 600
requires the court to consider whether the [C]ommonwealth
exercised due diligence, and whether the circumstances
occasioning the delay of trial were beyond the Commonwealth’s
control.” Selenski, 994 A.2d at 1088. If the Commonwealth
exercised due diligence and the delay was beyond the
Commonwealth’s control, “the motion to dismiss shall be denied.”
Pa.R.Crim.P. 600(G). The Commonwealth, however, has the
burden of demonstrating by a preponderance of the evidence that
it exercised due diligence. See [Commonwealth v.] Browne,
584 A.2d [902,] 908 [(Pa. 1990)]. As has been oft stated, “[d]ue
diligence is fact-specific, to be determined case-by-case; it does
not require perfect vigilance and punctilious care, but merely a
showing the Commonwealth has put forth a reasonable effort.”
Selenski, 994 A.2d at 1089. “If, at any time, it is determined
that the Commonwealth did not exercise due diligence, the court
shall dismiss the charges and discharge the defendant.”
Pa.R.Crim.P. 600(G).
Commonwealth v. Bradford, 46 A.3d 693, 700–02 (Pa. 2012) (citations
reformatted).
As this Court has previously elucidated:
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[T]he courts of this Commonwealth employ three steps ... in
determining whether Rule 600 requires dismissal of charges
against a defendant. First, Rule 600(A) provides the mechanical
run date. Second, we determine whether any excludable time
exists pursuant to Rule 600(C). We add the amount of excludable
time, if any, to the mechanical run date to arrive at an adjusted
run date.
If the trial takes place after the adjusted run date, we apply the
due diligence analysis set forth in Rule 600(D). As we have
explained, Rule 600 encompasses a wide variety of circumstances
under which a period of delay was outside the control of the
Commonwealth and not the result of the Commonwealth’s lack of
diligence. Any such period of delay results in an extension of the
run date. Addition of any Rule 600 extensions to the adjusted run
date produces the final Rule 600 run date. If the Commonwealth
does not bring the defendant to trial on or before the final run
date, the trial court must dismiss the charges.
Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super. 2013)
(cleaned up).
In dispute at the Rule 600 hearing was a continuance requested by
Appellant due to the Commonwealth’s late disclosure of evidence, just prior
to the scheduled trial date. The period at issue accounts for 76 days from
August 3, 2018 (the date Appellant requested the continuance), until October
18, 2018 (when Appellant’s counsel subsequently sought leave to withdraw).
The crux of counsel’s calculation dispute centered on Judge
Tolliver’s August 8, 2018 Order, granting [Appellant]’s August 3,
2018 Expedited Motion for Continuance, and attributing the
resultant delay to [Appellant] upon agreement of the parties[.]
Defense Counsel asserted that attributing that time against it was
error, and that instead, the resultant delay should have been
attributed to the Commonwealth, arguing that its continuance
request was necessitated by the Commonwealth’s late
disclosures. In response, the Commonwealth emphasized that
prior Defense Counsel had agreed both in advance of argument,
via text message correspondence, and at the August 6, 2018
argument before Judge Tolliver, that any resultant delay would be
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excludable. After consideration of the evidence, argument, and
post[-]argument briefs presented by the parties, the [c]ourt
ultimately determined that grounds necessary to overrule Judge
Tolliver’s August 8, 2018 Order, attributing the delay to the
Defense, had not been substantiated. Ultimately, the record
reflected sufficient excludable time so as to negate [Appellant]’s
Rule 600 Motion. As such, [his] instant Rule 600 claim merits no
relief.
TCO at 10.
Appellant requested the continuance on August 3, 2018, due to the
Commonwealth’s late-disclosure of cell phone tower evidence and a related
expert report refuting Appellant’s alibi, and a hearing was scheduled to
address the matter, inter alia, on August 6, 2018. At that hearing, the
Commonwealth stated:
The Commonwealth has no objection to defense request to a
continuance[,] provided that that continuance be on [Appellant]
and that the time you ruled excludable as a defense continuance,
to the extent that it wouldn’t affect the Commonwealth as it moves
forward and the Commonwealth would not [be] barred under Rule
600.
The Commonwealth recognizes that it’s up against the Rule 600
date and has been working to bring [Appellant] to trial in time.
The additional evidence which defense wants time to review and
to consider points of cross-examination or to consider their
counter-expert, the Commonwealth thinks that it’s perfectly
reasonable that they would need additional time to do that.
N.T., 8/6/18, at 8-9.
Appellant argued that any delay due to his own request for a
continuance should be attributed to the Commonwealth because of the
Commonwealth’s lack of diligence in seeking evidence to refute his alibi. See
id. at 12-14. As noted by Judge Tolliver, Appellant provided his alibi notice
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on October 20, 2017, and the Commonwealth did not seek a warrant to search
Appellant’s cell phone until July 26, 2018. Id. at 17-18. Appellant advised
that the Commonwealth had his cellphone in its custody the entire time. Id.
at 18.
Judge Tolliver initially indicated an intent to attribute the defense’s
continuance to the Commonwealth for Rule 600 purposes. Id. The
Commonwealth then argued: “Your Honor, the Commonwealth would submit
that the remedy would be … to consider how the evidence is going to come in
at trial, not to bar effectively the Commonwealth from trying the case by
forcing a continuance on the Commonwealth, because that’s effectively what
would happen.” Id. at 19. The Commonwealth suggested that the court
consider an alternative remedy, arguing that the court’s “concerns regarding
the defense’s need to prepare for trial would be alleviated through other
needs, other than a Commonwealth continuance through which the
Commonwealth would be essentially barred from trying the case under Rule
600.” Id. at 21.
Judge Tolliver understood this to mean that the Commonwealth was
prepared to go to trial without the cell phone evidence or related expert
reports, and asked defense counsel if Appellant wanted to proceed to trial.
See id. at 42. Defense counsel answered: “Yes. As long as it also includes
them not being able to use it on rebuttal. So completely excluded, we will
proceed on Wednesday.” Id. The Commonwealth responded:
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Your Honor, first, the new information that was provided to
defense … is the cell tower information. And that information is
something that the Commonwealth would want to put on in its
case[-]in[-]chief. But if defense is going to put up an alibi witness
and we have evidence that directly refutes that, it should not be
precluded from coming in on rebuttal.
Your Honor, there’s even case law that suppressed statements by
defendants can be brought in on rebuttal, because it would be
fundamentally unfair to allow a witness to get on the stand and lie
without any kind of ability to cross-examine them.
Id.
Defense counsel replied that Appellant was only ready to proceed to trial
without a continuance if the Commonwealth was completely barred from using
the cell phone evidence. Id. at 43-44. The Commonwealth retorted:
Your Honor, the cell tower data is something that if Your Honor
decides it can only come in, in rebuttal is still entirely within the
control of the defense on whether they want to put up an alibi
witness. If they want to put up an alibi witness to say that he was
with [Appellant] in Skippack and we have clear proof that he was
not with [Appellant] in Skippack, it would be fundamentally unfair
to bar … the Commonwealth from providing that evidence to the
jury, especially given that there is no requirement that the
Commonwealth provide [notice of] witnesses that [it calls] in
rebuttal.
The Commonwealth has provided all discovery as it has been
received. The Commonwealth absolutely acknowledges that it
failed to do [an] investigation as quickly as it could have, that
things were put off [until the] last minute [and] that they should
not have been. However, the rules of discovery have not been
violated with respect to any of that. And the defense cannot ask
Your Honor and should not ask Your Honor to preclude information
that is absolutely critical to rebut an alibi witness. That would
essentially allow any alibi witness to get up and lie on the stand
and say I was with [Appellant] in Skippack at 4:11 when that call
came in, when the Commonwealth has clear and convincing
evidence to the contrary. That would be fundamentally unfair to
the Commonwealth, Your Honor.
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Id. at 44-45.
Judge Tolliver then indicated that he was going to attribute the time to
the defense for any continuance request, because he was not going to revisit
his previous order permitting admission of the cell phone evidence and related
expert testimony. Id. at 51. The court questioned both attorneys about their
communications prior to the continuance motion. Defense counsel admitted
that she had agreed with the prosecutor to have the continuance attributed to
the defense. Id. at 56-57. Defense counsel argued, however, that she had
only done so because the court had already ruled to admit the new evidence.
Id. at 57-58. Ultimately, defense counsel requested a thirty-day continuance.
Id. at 61.
On appeal, Appellant now argues that Judge Tolliver, and then the Rule
600 court, erred in attributing the defense’s continuance to Appellant due to
the Commonwealth’s delay in seeking the warrant. Appellant further argues
that this delay demonstrated a lack of due diligence, and he also asserts that
the Commonwealth was not duly diligent with respect to several other
discovery matters. The Commonwealth counters that, “in granting
[Appellants]’s request for a continuance, it was reasonable for the trial court
to charge him with the delay as it was his request, and because the
Commonwealth proceeded without objecting to that request based on his prior
agreement that the delay would be attributed to him.” Commonwealth’s Brief
at 20. The Commonwealth further emphasizes that, “if any remedy was in
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order, the court could consider an evidentiary remedy, rather than one that
would jeopardize the entire case on speedy trial grounds.” Id. at 19-20.
Under these circumstances, we agree with the Commonwealth. The
Commonwealth admitted that its delay in seeking a warrant was inexcusable,
however, the Commonwealth was prepared to go to trial without the cell
phone evidence and experts, rather than run afoul of Rule 600. Exclusion of
this evidence from the Commonwealth’s case-in-chief was more than
adequate to cure any lack of diligence. This was no small concession by the
Commonwealth, as the cell phone evidence placed Appellant near J.C. at the
time of one of the assaults, in addition to its relevance to disprove Appellant’s
alibi.
Further, we conclude that Appellant’s insistence at the August 6, 2018
hearing, that the Commonwealth be completely precluded from presenting the
cell phone evidence in rebuttal if Appellant were to present an alibi witness at
trial, was not a reasonable request. “A litigant opens the door to inadmissible
evidence by presenting proof that creates a false impression refuted by the
otherwise prohibited evidence.” Commonwealth v. Nypaver, 69 A.3d 708,
716 (Pa. Super. 2013). It would have been fundamentally unfair to the
Commonwealth for the court to permit Appellant to present alibi witnesses
without the Commonwealth’s ability to offer the cell phone evidence in
rebuttal. Consequently, we ascertain no abuse of discretion in the Rule 600
court’s decision to stand by Judge Tolliver’s prior ruling that the defense’s
continuance was excludable time under Rule 600.
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Appellant also
avers that 495 days of non-excludable time accrued in this matter.
However, even without the 76 days of time between the August
3, 2018 motion and October 18, 2018 Motion to Withdraw, 419
days of non-excludable time elapsed. Regardless of those 76 days
at issue, the Commonwealth failed to bring Appellant to trial within
365 days.
Appellant’s Brief at 16.
We conclude that this aspect of Appellant’s argument is meritless. As
noted by the Commonwealth, Appellant’s non-excludable time calculation of
419 days differs from the trial court’s calculation in that he
indicates by notations on the timeline in his brief that the 67 days
between the trial court’s March 11, 2019[] order scheduling this
matter for trial, and his May 17, 2019[] Rule 600 motion, should
be attributed to the Commonwealth. [Appellants]’s Brief at 11.
Tellingly, he made this latter argument before the trial court, but
made no effort to support it. See N.T.[,] 5/17/19[,] at 47 (“I
don’t have much argument on this point. But I’m not conceding
from March 11th of 2019 to today, May 17th of 2019[.]”).
Commonwealth’s Brief at 17.
The “time attributable to the normal progression of a case simply is not
‘delay’ for purposes of Rule 600.” Commonwealth v. Mills, 162 A.3d 323,
325 (Pa. 2017). The 67 days at issue appear, on their face, to be a delay
due to the trial court’s scheduling, and Appellant provides no argument as to
why such court delay should be considered non-excludable time attributable
to the Commonwealth. Less those 67 days, the non-excludable time was 352
days.
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Thus, we conclude that the trial court did not err in denying Appellant’s
motion to dismiss pursuant to Rule 600.
Mistrial
Next, Appellant asserts that the trial court abused its discretion when it
failed to declare a mistrial following an emotional outburst by the victim’s
mother, A.D., during her testimony. Appellant complains he was prejudiced
by her behavior and, because it was not immediately cured by a cautionary
instruction, that he was deprived of a fair trial. Initially, we note that whether
to declare a mistrial is a decision which rests within the sound discretion of
the trial court, whose exercise thereof will not be reversed absent an abuse of
such discretion. Commonwealth v. Pearson, 685 A.2d 551, 554 (Pa. Super.
1996).
During the Commonwealth’s direct examination of A.D., the following
exchange occurred:
Q. Would [Appellant] know that he wasn’t allowed to be in [J.C.]’s
room alone with him?
A. Yes, he did.
Q. How would he know that?
A. [Appellant], you did it. Just say you did it. Come on. Why
would you take me through this?
THE COURT: Ma’am, sit down, please.
THE WITNESSS: No. He did it. Just say you did it.
N.T., 5/29/19, at 248.
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Immediately following this exchange, the trial court dismissed the jury
for the day, without addressing A.D.’s emotional outburst. Id. After the jury
left, Appellant’s counsel moved for a mistrial, arguing:
Given the level of her emotion, the -- I don’t want to say threats,
but yelling directly at my client and telling him that he needs to
admit this, and things of that nature, unfairly prejudices him, and
I don’t think that we can really adequately give him the
opportunity for a fair trial after an outburst of that magnitude,
which isn’t going to come down on the record, where [she] slams
her arms down on the side of the witness stand and then starts to
scream at my client.
Id. at 249. The trial court clarified for the record that: “[T]o describe it, she
comes off of the witness stand in the middle of redirect examination. I think
the record will reflect what she said, and she said it screaming and stormed
out of the courtroom.” Id. The Commonwealth admitted that A.D.’s outburst
was inappropriate, but contended that the resulting prejudice could be cured
by a jury instruction and, thus, that a mistrial was not warranted:
Your Honor, what just happened was totally inappropriate. It was
not elicited by the Commonwealth. As far as whether that’s
grounds for a mistrial, I would submit that it’s not. I would
request time to review any case law about what would be grounds
for a mistrial. But while it [was] upsetting, inappropriate, and
completely unnecessary, I don’t think she said anything to the
jury that the jury wouldn’t be able to disregard and set aside.
There was no information that was given to the jury that the jury
shouldn’t know. She didn’t actually say anything, as far as giving
information goes. She was totally inappropriate and out of line,
and the Commonwealth had specifically instructed her not to do
something like that.
Id. at 250-51.
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In response to the arguments of counsel, the trial court tentatively
agreed with the Commonwealth, stating:
Her accusation and claim that you did it and you know that you
did it, why don’t you just admit it, coming from the mother of the
alleged victim, I don’t know that the jury is going to put any stock
in that substantively. I think it certainly can be cured with a
curative instruction. But I won’t rule on the motion yet until you
have had an opportunity to digest it yourselves, research it
overnight. And I think we will reconvene tomorrow morning at
8:45, at which time we can discuss it.
Id. at 251.
The trial court then asked a detective (who had accompanied A.D. as
she stormed out) if A.D. said anything that might have been overheard by the
jury as it exited the court. The detective indicated that, as he “was trying to
get her to be quiet and move her back[,]” A.D. was shouting that she “was
putting on an act, and she was tired of putting on an act, she doesn’t put on
an act for anyone, no one; and that [Appellant] knows that he did this, and
that she’s sick of this and she doesn’t want to go through this anymore.” Id.
at 255. The Commonwealth then argued that those additional comments by
A.D. could be construed as undermining her credibility. Id. at 255-56.
The following morning, defense counsel argued, citing Commonwealth
v. Marshall, 568 A.2d 590, 597 (Pa. 1989), that although A.D.’s outburst
might have been cured by an immediate instruction,
given the fact that we dismissed the jury after the outburst, and
now it’s been approximately sixteen hours or so since the outburst
occurred, they went home, they had time to think about it. I
would submit that[,] at this point in time, even the curative
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instruction would not be sufficient to ameliorate the undue
prejudice to [Appellant] and his ability to receive a fair trial.
N.T., 5/30/19, at 6.
Nevertheless, the trial court ultimately ruled that it would deny the
mistrial and issue a curative instruction to the jury, and it would permit
Appellant’s counsel to draft the instruction. Id. at 7-8. The Commonwealth
then offered that:
The only thing I would also consider perhaps including is that[,]
because she said something along the lines of “just confess,”
perhaps instructing the jury that [Appellant] has no obligation to
do anything but remain silent prior to and after trial. I would defer
to defense if that would be helpful to their strategy as far as
dealing with this, but I want to bring that to the [c]ourt’s attention
as something that we might want to address in the curative
instruction as well.
Id. at 8-9.
The court questioned each juror, separately, as to whether they had
heard anything as A.D. left the courtroom, after they had been dismissed from
the courtroom for the day. Id. at 29-43. Some of the jurors heard A.D.
screaming, but none of the jurors who heard A.D. understood what she was
saying.
Ultimately, the court issued the following instruction to the jury:
Well, as I told you during voir dire and otherwise, trials are
dynamic events, and while we try to stick to schedules as best we
can, oftentimes things happen that may change up our schedule
a little bit. You’ve been witness to one of those dynamic events
to some extent.
So[,] we’ve been here all morning trying to deal with some issues
outside of your hearing. We’ve done that at this point, and by
virtue of our work, I want to give you some cautionary instructions
with regard to a number of things.
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So[,] let me first talk about [A.D.] Yesterday, before we finished
for the day, you heard and saw an outburst from a witness, [A.D.]
That outburst, both her statements and her conduct, is not
evidence in this case. I am instructing you to totally disregard
anything and everything that [A.D.] did and stated during that
outburst.
You are not to infer that she knows any facts or has any
information beyond that about which she testified. And of course,
you’re to judge her credibility the same as any other witness.
I also want to re[-]enforce to you something that I’ve told you
now a number of times, that [Appellant] is presumed innocent and
has an absolute constitutional right to remain silent when accused
of a crime and an absolute constitutional right not to testify in this
trial if he so chooses, and you cannot make any adverse
[inference] against [Appellant] for so doing.
Id. at 47-48.
On appeal, Appellant now argues that the “trial court’s failure to give a
prompt cautionary instruction for approximately seventeen hours prevented
him from receiving a fair trial, due to the emotionally charged nature of the
outburst and implication of his right to remain silent.” Appellant’s Brief at 20.
We initially note that Appellant did not raise the matter of the outburst’s
potential impact on his right to remain silent in the lower court. Although the
jury was instructed in that regard, it was the Commonwealth, not Appellant,
who suggested the instruction as a cautionary measure. Moreover, Appellant
did not specify that basis for his claim in his Rule 1925(b) statement.
Consequently, the trial court did not address the matter in its Rule 1925(a)
opinion. Accordingly, we conclude that Appellant waived this aspect of his
claim. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any
issues not raised in a [Rule] 1925(b) statement will be deemed waived.”); see
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also Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal.”).
However, Appellant adequately preserved his claim that he was
prejudiced by A.D.’s emotional outburst to the extent that it deprived him of
a fair trial, and that no curative instruction could mitigate that prejudice due
to the delay between the outburst and the responsive instruction. In that
regard, the trial court defended its decision to deny a mistrial and, instead,
issue a curative instruction, reasoning as follows:
Contrary to [Appellant]’s contention that the window for
remediating the accrued prejudice, and his reliance on …
Marshall, the record reflects that the [c]ourt’s immediate
intervention, wherein it shifted the jury’s attention from [A.D.]’s
exit, instructing them that the day’s proceedings had concluded,
echoing its customary and familiar admonitions, all conveyed a
sense of calm, and immediately deflated any perceived escalation;
returning proceedings to [the] status quo.
Our Pennsylvania Supreme Court upheld similarly timed
prophylactic instructions in Commonwealth v. Philistin, 774
A.2d 741 (Pa. 2001), where, by virtue of the timing of the
allegedly prejudicial outburst, the [c]ourt was constrained to
deliver its cautionary instruction … the following day. More
specifically, in upholding the trial court’s mistrial denial, the Court
opined that, “[g]iven the facts that the outburst occurred only
once, that it was promptly brought under control by the trial court,
and that a thorough curative instruction was given to the jury
before the proceedings continued, we are satisfied that any
potential prejudice was abated.” Id. at 744….
TCO at 15-16.
In Marshall, a jury trial was interrupted by an emotional outburst
toward the defendant by one of the victims. Marshall, 568 A.2d at 596. Our
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Supreme Court held that the “harm caused by such an outburst can be cured
by an immediate curative instruction to the jury[,]” further explaining that
the trial court immediately cautioned the jury that it should ignore
the outburst and to decide the case exclusively on the evidence
and not on emotion, sympathy[,] or prejudice. Given the fact that
the outburst was brief, occurred only once, and was followed by
an immediate instruction to the jury, we are satisfied that any
prejudice was diffused[,] and that [the a]ppellant’s fair trial was
not threatened.
Id.
In Philistin, “spectators in the courtroom cheered” when the defendant
was convicted of first-degree murder in a capital case. Philistin, 774 A.2d at
743. Although the judge admonished the spectators, no instructions were
given to the jury until the following day when the penalty phase began. Id.
Philistin argued that the outburst resulted in prejudice that biased the jury
toward the subsequently imposed death penalty. Id. Our Supreme Court
rejected that claim, reasoning:
It is asserted by [the] appellant that the trial court failed to
provide any curative instruction to the jury after the outburst, and
that jurors might therefore have been encouraged to impose a
sentence of death. This assertion is simply false. The record
reveals that a thorough curative instruction was given by the court
before the penalty hearing commenced. The penalty stage
proceedings did not begin until the day after the outburst
occurred. As those proceedings were about to begin, the court
strongly warned spectators that no further outbursts would be
tolerated. The jury was then brought in and the court issued [a]
… curative instruction[.] …
Given the facts that the outburst occurred only once, that it was
promptly brought under control by the trial court, and that a
thorough curative instruction was given to the jury before the
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proceedings continued, we are satisfied that any potential
prejudice was abated.
Id. at 743–44.
We agree with the trial court. A.D.’s emotional outburst was brief and,
although the curative instruction was not issued until the following day, it was
issued before any proceedings continued in Appellant’s case, in accordance
with Philistin. While an immediate instruction would have been preferable,
the nature and length of the outburst was not so shocking as to be incurable
by instruction before the case continued. Moreover, the outburst was not
elicited or exploited by the Commonwealth. In these circumstances, we
conclude that any resulting prejudice was adequately addressed by the
curative instruction, noting that the “law presumes that the jury will follow the
instructions of the court.” Commonwealth v. Brown, 786 A.2d 961, 971
(Pa. 2001).
Appellant argues that Philistin is distinguishable because the jury had
already rendered a verdict in that case at the time of the outburst. Appellant’s
Brief at 20. We disagree. The jury in Philistin was still empaneled and had
yet to decide the defendant’s fate during the penalty phase of that trial at the
time of the outburst. Appellant also asserts that the judge immediately
admonished the spectators in Philistin, whereas here, the judge dismissed
the jury for the day without specifically addressing the outburst. Id.However, the critical issue here is not whether the spectators were
admonished promptly, but the timing of the curative instruction to the jury.
In that regard, Philistin is directly analogous to the circumstances in this
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case. In both instances, the jury was given a curative instruction before the
proceedings continued.
Accordingly, we conclude that the trial court did not abuse its discretion
in denying a mistrial based on A.D.’s emotional outburst.
Prior Bad Acts Evidence
Appellant’s third and fourth issues concern the admission of prior bad
acts (“PBA”) evidence at his trial, and so we will address those claims together.
Specifically, Appellant argues that the trial court abused its discretion by
admitting evidence of Appellant’s juvenile adjudication for raping J.C. (Issue
3), and related evidence of his confession to committing that offense (Issue
4).
When reviewing a claim concerning the admissibility of evidence,
and specifically evidence of other crimes or bad acts by a
defendant, we note:
The admission of evidence is a matter vested within the
sound discretion of the trial court, and such a decision shall
be reversed only upon a showing that the trial court abused
its discretion. In determining whether evidence should be
admitted, the trial court must weigh the relevant and
probative value of the evidence against the prejudicial
impact of that evidence. Evidence is relevant if it logically
tends to establish a material fact in the case or tends to
support a reasonable inference regarding a material fact.
Although a court may find that evidence is relevant, the
court may nevertheless conclude that such evidence is
inadmissible on account of its prejudicial impact.
An abuse of discretion is not merely an error of judgment, but is
rather the overriding or 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 record.
Further, an abuse of discretion may result where the trial court
improperly weighed the probative value of evidence admitted
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against its potential for prejudicing the defendant. When a trial
court indicates its reason for its ruling, our scope of review is
limited to an examination of that stated reason.
Commonwealth v. Weakley, 972 A.2d 1182, 1188–89 (Pa. Super. 2009)
(cleaned up). Furthermore,
evidence of prior bad acts or unrelated criminal activity is
inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
However, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Pa.R.E. 404(b)(2). In
determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative value
of such evidence against its prejudicial impact.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).
Here, there was extensive litigation of the at-issue PBA evidence, but
most pertinent to our discussion begins with the Commonwealth’s filing of a
motion in limine seeking a pre-trial ruling on the admission of PBA evidence
on March 11, 2019, arguing:
The Commonwealth seeks to introduce certain evidence of
[Appellant]’s prior sexual abuse of J.C., including the details of
[Appellant]’s prior abuse, [his] confession, J.C.’s disclosure, and
[Appellant]’s subsequent lack of access to J.C. for four years. This
evidence is critical for the Commonwealth to show the full context
of the crimes for which [Appellant] is currently charged, to show
how [he] accomplished his current crimes, and to show how
[Appellant] manipulated J.C. into compliance and silence. Without
the details of this abuse, if only a bare stipulation or explanation
of [Appellant]’s prior sexual abuse of J.C. were admitted, it would
be impossible for a jury to understand the environment in which
[Appellant] perpetrated these crimes and lens through which J.C.
experienced this abuse.
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Commonwealth’s Rule 404(b) Motion, 3/11/19, at 2-3. Appellant filed a
motion objecting to the admission of the prior bad acts as unduly prejudicial
and without exception under Rule 404(b), and the trial court held argument
on the matter on May 17, 2019.
On May 24, 2019, the trial court issued an order denying Appellant’s
motion, and granting in part, and denying in part, the Commonwealth’s
motion. Specifically, the court decided as follows:
[U]pon consideration of [Appellant]’s Motion To Reconsider
Admission of Prior Bad Acts Evidence, the Commonwealth’s
objection thereto, and after argument, it is ORDERED that the
Motion is DENIED, in part, to the extent that the Commonwealth
shall be permitted to introduce: testimony of minor victim, J.C.
regarding [Appellant]’s prior sexual abuse of J.C., as well as, [his]
admission and adjudication of delinquency for one count of rape
of a child (F1), incorporating four (4) instances of his anal rape of
J.C., introduced as certified copies of court records.
It is further ORDERED that disposition of the Motion as to:
testimony of Detective David Mazza and/or former Detective
Grozinski regarding the confession taken from [Appellant] on May
3, 2010, and/or the contents of [Appellant]’s confession taken on
May 3, 2010, is RESERVED, until time of trial, for consideration by
the [c]ourt of its potentially cumulative and/or excessively
prejudicial nature. This Order does not address the admission of
said evidence for impeachment purposes, a determination of
which will be considered if and when the Commonwealth seeks
admission for such purpose.
To the extent that the Commonwealth seeks to introduce any of
the above-referenced evidence under the “lustful disposition”
exception, and in response to its related Request for the [c]ourt
to so instruct the jury, even assuming said evidence might be
admissible thereunder, given the other potentially permissible
bases for admission, including, but not limited to, res gestae
and/or intent, the [c]ourt declines to so instruct the jury; the use
of said instruction being unnecessary, and therefore, overly
prejudicial.
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Order, 5/24/19, at 1-2. Thus, the court permitted the Commonwealth to
introduce evidence of Appellant’s prior rape of J.C., through J.C.’s testimony,
as well as court records of Appellant’s conviction for that offense, under the
res gestae and intent exceptions to the prohibition on PBA evidence. However,
it tentatively denied admission of Appellant’s confession, while reserving
judgment for trial as to whether evidence of the confession could be admitted
for another purpose.
As to the admitted evidence, the trial court determined “that the
probative value of the proffered res gestae evidence outweighed any alleged
unfair prejudice to [Appellant],” and that “the record also reflects numerous
prophylactic measures both taken and permitted by the [c]ourt to ensure the
jury’s proper use and reliance o[n] such evidence.” TCO at 21. For instance,
during voir dire, the court questioned each potential juror as follows:
As I previously informed you, this matter involves charges of sex-
related offenses. You’re going to hear [that Appellant] admitted in
juvenile court that, when he was a juvenile, he engage[d] in
sexual intercourse with the complaining witness. I am going to
instruct you later that you can consider this evidence for certain
limited purposes, but you cannot use this information to say that
the defendant is a person of bad character or criminal tendencies
from which you might be inclined to infer guilt. Is there anyone
here who feels that the fact that [Appellant] previously admitted
in court that when he was a juvenile he had illegal sexual contact
with the complaining witness in 2010, that they cannot follow my
instruction as I just summarized it for you, and fairly and
impartially reach a verdict in this case?
TCO at 20 (quoting N.T., 5/28/19, at 4-5); see also N.T., 5/28/19, at 45-46
(reading the question to the remaining potential jurors during voir dire).
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At trial, the Commonwealth moved to refresh J.C.’s recollection with
Appellant’s confession, and then sought to have it introduced outright when it
determined that J.C. was having trouble recalling the prior abuse. As
explained by the court at the time:4
Okay. And I guess what’s happening is, the assistant district
attorney, in preparing the witness again, has determined that the
victim has very little recollection, or not sufficient recollection, of
some of the details of what happened when he was six or seven,
which I think the Commonwealth would like to introduce in order
to pursue their theory that even though four years intervened,
there was grooming conduct.
N.T., 5/29/19, at 89.
The court ultimately allowed Appellant’s confession to be admitted, after
“the Commonwealth narrowed the scope of its request to focus on
[Appellant]’s grooming behavior….” TCO at 23. The trial court explains:
Ultimately, the [c]ourt ruled as follows as to the admission of
[Appellant]’s 2010 confession:
The [c]ourt: With regard to the admission of [Appellant]’s
prior confession for the juvenile incident, the 2010 incident,
I have ruled that in my discretion, I believe given that the
victim in this case was six and seven years old at the time
of that prior assault, the fact that his memory was obviously
not very good as to that prior assault is explainable and
understandable by virtue of how young he was at the time.
So[,] while I allowed that testimony to be introduced as a
prior bad act and while I’m going to allow the
Commonwealth to introduce the actual adjudication of
[Appellant], conviction of [Appellant] as a juvenile back
then, I am going to allow the Commonwealth to introduce
[his] confession because I do think there are aspects of that
____________________________________________
4The prior sidebar where the matter was raised by the Commonwealth was
not transcribed.
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confession that are highly probative of [Appellant]’s
common scheme plan and some of the uniqueness of his
actions with the victim.
Then, before the Commonwealth introduced Det. Grozinski’s
testimony, to preclude any prejudice to [Appellant] or misuse by
the jury, the [c]ourt again cautioned the jury as follows to guide
[its] evaluation of [Appellant]’s juvenile confession:
The [c]ourt: Now, you’re about to also hear testimony from
a detective involving the prior juvenile case back in 2010.
And you’ve heard evidence that [Appellant] was guilty of
improper conduct for which he is not on trial here. I’m of
course speaking of the testimony to the effect that
[Appellant] previously admitted and was adjudicated
delinquent for one count of rape of a child incorporating four
instance[s] of anal rape of [J.C.]. And you’re now about to
hear evidence of [Appellant]’s confession with regard to
those events in 2010.
Thus[,] evidence is before you for a limited purpose. That
is, if you find it credible, you may consider this evidence as
proof of [Appellant]’s motive, intent, or common scheme or
plan and for nothing else. It must not be considered by you
in any way other than that purpose I just stated to you.
You must not regard this evidence as showing that
[Appellant] is a person of bad character or criminal
tendencies from which you might be inclined to infer guilt.
…
Thereafter, the [p]rosecutor examined Det. Grozinski at length
about the detailed and voluntary statement [Appellant] made to
him and Detective David Mazza … on May 3, 2010. In his
confession, [Appellant] delineated in horrific detail the manner in
which he had groomed, manipulated, and sexually abused his
young cousin, J.C.; and significantly, in a strikingly similar pattern
reflected in the instant allegations.
TCO at 24-25.
The trial court also notes that during the defense’s closing argument,
Appellant’s counsel recast the record of Appellant’s prior abuse of J.C. to
undermine J.C.’s credibility. Defense counsel argued, inter alia:
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Here’s the question. In 2009 and 2010, at six and seven years
old, [J. C.] told about the sexual abuse that he was suffering back
when [Appellant] was 15 and 16 years old, back in 2009 and 2010.
As a six-and-seven-year-old kid, he had the courage to get up
there and to tell about it. Not only do we have seven years
between these two incidents that cast doubt on the fact that it
doesn’t show that there was motive or intent on the part of
[Appellant] seven years later; but if you’re going to sexually
assault a child, why would you pick a child that had already told
about the prior sexual assaults? Why would you pick a child that
is now older and stronger? Why would you pick a child that you
know can do the same thing again and put you back in the same
legal troubles? It just doesn’t make sense.
N.T., 5/31/19, at 59.
The trial court also issued further instructions regarding the PBA
evidence before the jury retired to deliberate:
Now, as I previously instructed you during the trial, evidence that
[Appellant] previously admitted and was adjudicated delinquent
for one count of rape of a child, incorporating four instances of his
anal rape of [J.C.], and evidence of [Appellant]’s confession, which
you heard, with regard to those events in 2010, are before you
for a limited purpose. That is, if you find this evidence credible,
you may consider it as proof of the complete story and/or of
[Appellant]’s motive, intent, and common scheme or plan. That
evidence must not be considered by you in any other way other
than the purpose I just stated. You must not regard this evidence
as showing that [Appellant] is a person of bad character or
criminal tendencies, from which you might be inclined to infer guilt
here.
N.T., 5/29/19, at 105-06.
In its Rule 1925(a) opinion, the trial court concluded:
In the final analysis, the proffered evidence[,] which aptly
demonstrated the manner in which [Appellant] groomed and
manipulated his young cousin to facilitate his continued sexual
abuse of him[,] was properly admitted where J.C., by virtue of his
age at the time, as well as the trauma suffered, was unable [to]
convey the same. See Commonwealth v. Hicks, 91 A.3d 47,
55 (Pa. 2014) ([n]oting that a fundamental precept of our criminal
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jurisprudence is that the Commonwealth is entitled to prove its
case by relevant evidence of its choosing[]). Likewise, the
overarching similarities between [Appellant]’s prior sexual assault
and the underlying crimes rendered the admission of [Appellant]’s
prior bad acts necessary to convey both the full extent and context
of the allegations at hand, as well as [Appellant]’s motive,
opportunity, plan, and scheme for victimizing J.C. See
Commonwealth v. Frank, 577 A.2d 609, 616-18 [(Pa. Super.
1990)] (holding that trial court admission of evidence of
defendant’s prior sexual assault of children under the common
plan or scheme exception was proper where the assaults
possessed a high degree of similarity and the court issued
cautionary instructions[]). Notwithstanding its proper admission
of [Appellant]’s prior sexual assault, the [c]ourt’s repeated
cautionary instructions to the jury, emphasizing the limited
purpose for which such evidence was admitted, negated any
potential for unfair prejudice to [Appellant].
TCO at 27.
Appellant argues that none of the exceptions to Rule 404(b)’s ban on
PBA evidence applied in the circumstances of this case, and that, in any event,
the prejudicial impact of that evidence was greater than its probative value.
First, he argues that his confession and prior juvenile record did not constitute
evidence of his motive. “To be admissible under this exception, there must
be a specific logical connection between the other act and the crime at issue
which establishes that the crime currently being considered grew out of or was
in any way caused by the prior set of facts and circumstances.”
Commonwealth v. Ross, 57 A.3d 85, 100 (Pa. Super. 2012) (cleaned up).
Appellant contends that:
In this instance, the government presented no evidence that the
current charges - removed seven years from Appellant’s prior
assault of the complainant - caused him to sexually assault the
complainant in this instance. The Commonwealth posited no
theory of revenge for Appellant against the complainant. Nothing
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in the record supports the supposition that the current charges in
some way ‘grew out of’ or were caused by the 2009 to 2010
incidents.
Appellant’s Brief at 23.
We disagree and ascertain no error with respect to the admission of the
PBA evidence under the motive exception. J.C. testified that, when Appellant
came into his room at Curtiz’s house, he told J.C. that he “needed this,” which
J.C. understood to mean that Appellant “needed more sexual activities, what
we did previous times.” N.T., 5/29/19, at 131. During another assault,
Appellant repeated to J.C. that he “needed it.” Id. at 139.
This evidence suggests a motive, that being Appellant’s desire to repeat
the prior sexual abuse of J.C. due to sexual attraction to J.C. or some similar
compulsion. As such, the prior assaults were relevant to show that motive,
given greater context and meaning to Appellant’s statements to J.C. while he
was assaulting him. Thus, there was at least some logical connection between
the crimes under consideration at trial, and the prior assaults tend to
demonstrate Appellant’s motive for assaulting J.C.
Moreover,
[i]n a case involving a challenge to the admission of evidence of a
prior sexual act, this Court has stated:
In general, evidence of other wrongful conduct not charged
in the information on which the defendant is being tried is
inadmissible at trial except in certain limited circumstances.
One such exception arises in the prosecution of sexual
offenses. Evidence of prior sexual relations between
defendant and his or her victim is admissible to show a
passion or propensity for illicit sexual relations with the
victim. This exception is limited, however. The evidence is
admissible only when the prior act involves the same victim
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and the two acts are sufficiently connected to suggest a
continuing course of conduct. The admissibility of the
evidence is not affected by the fact that the prior incidents
occurred outside of the statute of limitations.
Commonwealth v. Knowles, 637 A.2d 331, 333 (Pa. Super.
1994)…. This “lustful disposition” exception to the general rule
against the admission of evidence of prior or subsequent bad acts
has been consistently recognized by our Supreme Court for more
than a century. See, e.g., Commonwealth v. Bell, 31 A. 123(Pa. 1895) (stating “in prosecutions for adultery or for illicit sexual
intercourse of any class, evidence is admissible of sexual acts
between the parties prior to, or when indicating continuousness of
illicit relations, even subsequent to the act specifically under trial”)
(emphasis added and quotation omitted); Commonwealth v.
Snyder, 870 A.2d 336, 343–44 (Pa. Super. 2005) (allowing
admission of sexually explicit photograph of minor victim as
relevant to show a passion or propensity for illicit sexual
misconduct by the appellant towards victim); Commonwealth v.
Dunkle, 602 A.2d 830, 839 (Pa. 1992) (determining that
evidence of prior sexual misconduct is admissible if it shows a
passion or propensity for illicit sexual relations of the defendant
towards the victim).
Commonwealth v Wattley, 880 A.2d 682, 686–87 (Pa. Super. 2005)
(footnote omitted, some citations reformatted, emphasis omitted).
Here, the PBA evidence fits squarely within the “lustful disposition”
exception which, perhaps, might be considered a specific subcategory of
motive and/or res gestae evidence. The evidence of Appellant’s prior sexual
assault of J.C. clearly demonstrated “passion or propensity for illicit sexual
relations with the victim.” Knowles, 637 A.2d at 333.
Because we conclude that the PBA evidence constituted motive and/or
“lustful disposition” evidence under Rule 404(b)(2), we need not consider its
admission for other purposes. Consequently, we now turn to consider whether
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the “probative value of the evidence outweighs its potential for unfair
prejudice.” Pa.R.E. 404(b)(2).
There is no doubt that evidence of prior crimes, in the abstract, carries
with it a risk of undue prejudice. Prevention and/or mitigation of such risk is
the essence of Rule 404, which generally prohibits the use of character
evidence, see Rule 404(a)(1), as well as evidence of prior bad acts to prove
character, see Rule 404(b)(1). However, “the trial court is not required to
sanitize the trial to eliminate all unpleasant facts from the jury’s consideration
where those facts are relevant to the issues at hand and form part of the
history and natural development of the events and offenses for which the
defendant is charged.” Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa.
2002) (cleaned up).
Here, we are satisfied the trial court’s prophylactic efforts were sufficient
to limit the risk of undue prejudice. The court issued several instructions to
the jury as to the limited purpose for which the PBA evidence was admitted,
and the jury is presumed to have followed the court’s instructions. Brown,
786 A.2d at 971. The court also limited the admission of Appellant’s
confession to the prior conduct that J.C. could not recall in sufficient detail.
Even before those measures were taken, the trial court used the voir dire
process to exclude any jurors who believed they would be unable to follow the
court’s instructions regarding evidence of prior crimes against the victim by
Appellant. Given these measures, we conclude that the trial court did not
abuse its discretion by admitting the at-issue PBA evidence.
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Late Amendment to the Criminal Information
Finally, Appellant asserts that the trial court abused its discretion by
permitting the Commonwealth to amend the criminal information based on
J.C.’s late disclosure of the sexual assault that occurred at Uncle Curtiz’s
home. We address such a claim pursuant to the following standards:
Pennsylvania Rule of Criminal Procedure 564 states:
The court may allow an information to be amended when
there is a defect in form, the description of the offense(s),
the description of any person or any property, or the date
charged, provided the information as amended does not
charge an additional or different offense. Upon amendment,
the court may grant such postponement of trial or other
relief as necessary in the interests of justice.
Pa.R.Crim.P. 564.
We have stated that the purpose of Rule 564 is to ensure that a
defendant is fully apprised of the charges, and to avoid prejudice
by prohibiting the last minute addition of alleged criminal acts of
which the defendant is uninformed. Commonwealth v. Duda,
831 A.2d 728, 732 (Pa. Super. 2003). The test to be applied is:
[W]hether the crimes specified in the original indictment or
information involve the same basic elements and evolved
out of the same factual situation as the crimes specified in
the amended indictment or information. If so, then the
defendant is deemed to have been placed on notice
regarding his alleged criminal conduct. If, however, the
amended provision alleges a different set of events, or the
elements or defenses to the amended crime are materially
different from the elements or defenses to the crime
originally charged, such that the defendant would be
prejudiced by the change, then the amendment is not
permitted.
Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa. Super.
2001) (citation omitted).
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Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006)
(footnote omitted).
Here, “the record reflects that the Commonwealth sought to amend the
bills after J.C.’s testimony to permit that formal document to conform to both
its previous pretrial disclosure, as well as the evidence produced at trial.” TCO
at 28. The trial court further explained:
Initially, less there be any insinuation of deliberate or tactical
delay in the Commonwealth seeking to amend the Bills of
Information to include an incident which was disclosed less than
one week prior to commencement of trial, it is noted that Defense
Counsel readily conceded during trial, and the record, likewise
reflects, that the Commonwealth advised him (on May 23, 2019)
via email, at the earliest possible opportunity of additional details
regarding a 3rd incident of sexual abuse transpiring at Uncle
Curtiz’s home the same December 2016 weekend as already
alleged, that had come to light during its witness preparation of
J.C. More specifically, the amendment was sought by the
Commonwealth after J.C.’s testimony, upon inquiry of the [c]ourt
as to whether counsel needed to put any outstanding issues on
the record before bringing back the jury.
The Commonwealth responded as follows:
The Prosecutor: Yes, Your Honor. At this time, Your Honor,
the Commonwealth is moving to amend the bills of
information, not to add any new additional charges or
additional counts, but rather to specify that we are seeking
to move forward on conduct that came to light while witness
prep was ongoing. So the Commonwealth is seeking to
amend the bills to specify that Count 3, Involuntary Deviate
Sexual Intercourse with a Child, should refer to the first
instance of sexual intercourse -- of oral sex between
[Appellant] and the victim at the [U]ncle Curtiz’s house.
Count 4 should reflect the second instance of that
Involuntary Deviate Sexual Intercourse at [U]ncle Curtiz’s
house in Philadelphia; that includes oral and anal sex. And
then Count 5 would be to reflect the third instance at the
victim’s home…, including both oral and anal sex.
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I would note that in the bills of information, there is alleged
a course of conduct, with the course of conduct charge of
Corruption of Minors. It’s also alleged that these allegations
occurred between Friday[,] the 2nd of December of 2016[,]
and Monday, the 23rd of January of 2017, which was
consistent with the time range the victim testified to about
these incidents occurring. The bill also state that these
occurred in both Montgomery County and Philadelphia, and
that the Commonwealth learned this information during
witness prep and disclosed it to defense counsel
immediately upon learning it.
The [c]ourt: All right. Mr. Quigg.
Defense Counsel: Your Honor, we object to the
Commonwealth’s motion to amend the bills. Ms. Marvel --
this isn’t alleged in discovery, by the way. Because as soon
as she learned of it, she disclosed it to me. As is her duty,
she supplied me with all of the discovery…. But last week,
on May 23rd, Ms. Marvel sent me an email disclosing that
there is a third incident that the complaining witness was
alleging between himself and [Appellant]. That was the first
time that the complaining witness had mentioned that to
anybody, that there was [a] third incident. Before, it was[,]
as charged[,] two incidents. In the criminal complaint, you
have two incidents. At the preliminary hearing, he testified
about two incidents. In all of the discovery that was
provided, he discussed[,] up until the ongoing discovery
provided last week from Ms. Marvel[,] everything related to
two incidents between the two of them.
[N.T., 5/31/19, at 8-9.]
As the [c]ourt noted at the time [Appellant] asserted his objection,
such amendments may be made at any time before the case goes
to the jury to conform to the evidence presented at trial.
The [c]ourt: And I guess I should note that when you were
notified of this incident, you elected still to proceed to trial
and not seek a continuance. And I think that’s probably
because you perceived that it would come in either as a prior
bad act or as another act that’s being charged. And I take
it that you made the decision that even though you learned
of it late, you could prepare for it, and there would be no
prejudice in that regard, in terms of your dealing with it.
And as I recall, I guess, you cross-examined the victim on
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the fact that he did not disclose that incident, either I guess
in a Mission Kids statement or at the preliminary hearing.
And[,] certainly[,] you can argue that to the jury as well.
So, given that I don’t perceive[,] as I hear it[,] that the
defense is prejudiced in any way, and certainly it’s within
the rubric of the allegations, even as the bill was filed, it
covered a course of conduct between December and
January. So[,] I’ll grant the Commonwealth’s motion,
because I don’t think it’s really -- it’s actually just adding
particulars to the charges that have already been brought.
So[,] I’ll grant that motion. Your objection is noted.
The Prosecutor: Your Honor, I would just note, given that
Your Honor has granted that motion, the Commonwealth is
not going to proceed on Count 2, Statutory Sexual Assault.
The [c]ourt: Okay. All right. Is there anything further before
I bring the jury out?
Defense Counsel: No, Your Honor.
The Prosecutor: No, Your Honor.
[N.T., 5/31/19, at 10-11.]
***
Contrary to [his] instant claim, [Appellant] suffered no cognizable
prejudice. In the first instance, the Commonwealth advised him
as soon as it learned of additional details underlying the incident
charged in Count Three (IDSI); as they emerged during its witness
preparation. At that point, despite the opportunity, [Appellant],
sought no continuance from the [c]ourt; a strategic decision well
within Defense Counsel’s discretion.
Our Courts have repeatedly held that, so long as the crimes
specified in the original information involved the same basic
elements and arose out of the same factual situation as the crime
added by the amendment, the appellant is deemed to have been
placed on notice regarding his alleged criminal conduct and no
prejudice to defendant results. See Commonwealth v. Roser,
914 A.2d 447, 454 (Pa. Super. 2006); see Sinclair, supra([holding that the trial c]ourt’s grant of information amendment is
appropriate [where] defendant was fully apprised of the factual
scenario supporting the charges against him[]); see … Menzer,
18 A.3d at 1203 ([holding that d]efendant, who requested neither
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a recess, nor a continuance, failed to demonstrate he suffered
prejudice by virtue of Commonwealth’s amendment after its case-
in-chief[]).
In Roser, … the appellate court upheld the [trial c]ourt’s ruling
permitting the Commonwealth to amend its Bills requested
immediately before closing arguments. Roser, 914 A.2d at 454;
see also, Commonwealth v. Watkins, 361 A.2d 365, 659 (Pa.
Super. 1976) ([holding] motion to amend bills at close of the
Commonwealth’s case was not prejudicial). Likewise, in this case,
the [c]ourt appropriately determined that amendment was proper
where the Commonwealth’s request fairly fell within its prior
allegations, providing particulars thereto; causing no prejudice to
[Appellant].
Finally, the record reflects that Defense Counsel not only capably
cross-examined J.C., as to [the] eleventh hour disclosure of the
alleged third incident that precipitated the complained of
amendment to the Bills, but he was, likewise, permitted to
persuasively argue to the jury that J.C.’s last minute disclosure
was a reasonable basis to find J.C. not credible:
Defense Counsel: Talk about consistency. Think about the
fact that [J.C.] has told different stories to different people
every step of the way. Inventing an entirely new third
incident, two and a half years after this happened. Two and
a half years. Two and a half years goes by; and then, all of
a sudden, there’s this third incident, after going to Mission
Kids and being interviewed by [a] trained forensic
interviewer, after testifying at the preliminary hearing. Two
and a half years later, there’s this third incident that I never
told you about.
***
And then he doesn’t stop there in terms of the incident at
Uncle Curtiz’s house. He completes [sic] a new incident
where, in the man cave, he performs oral sex on
[Appellant], and [Appellant] performs oral sex on him. Prior
to one week ago, that had never been stated to anybody.
Not -- this isn’t even like the first incident where he invents
new things that had happened; this is an entirely new
encounter. Not in the Mission Kids interview, not at his
preliminary hearing. Two and a half years later, invents a
new act.
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[N.T., 5/31/19, at 45, 53-54.]
Trial and its requisite witness preparation are unequivocally and
naturally dynamic endeavors. In addition, as is frequently the
case with juvenile victims, and conceivably so with those subject
to abuse and/or trauma such as that supporting the instant
allegations, the process of extracting a victim’s recollection of
events can trigger or uncover previously suppressed or withheld
instances of abuse. To permit a defendant to benefit from the
traumatic impact of their wrongdoings would be manifestly
unreasonable. As such, our [c]ourts have held amendment
reasonable so long as it relies upon the same basic elements and
arose out of the same factual situation as the crimes previously
charged; as a defendant [is] already thereby on notice and thus,
no prejudice results. See Roser, supra. In this case, to deny
the Commonwealth’s motion to amend would have created … an
untenable result by precluding it from presenting the jury with
charges consistent with the evidence produced and/or dismissal
of well-supported claims, all of which [Appellant] had ample
general notice. As such, [Appellant]’s claim fails.
TCO at 28-32 (footnotes omitted, citations reformatted).
We must consider the following factors to determine if Appellant was
prejudiced by the amendment:
(1) [W]hether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds new
facts previously unknown to the defendant; (3) whether the entire
factual scenario was developed during a preliminary hearing; (4)
whether the description of the charges changed with the
amendment; (5) whether a change in defense strategy was
necessitated by the amendment; and (6) whether the timing of
the Commonwealth’s request for amendment allowed for ample
notice and preparation.
Commonwealth v. Mentzer, 18 A.3d 1200, 1203 (Pa. Super. 2011) (citation
omitted).
Appellant argues that
the Commonwealth amended the information to charge an entirely
new event. Pa.R.Crim.P. 564. Evaluating these factors for
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prejudice, Appellant was prejudiced by the Commonwealth’s mid-
trial amendment. The amendment changed the factual scenario
in that the third count of … [IDSI] initially accounted for two
different types of intercourse arising in the same incident. See
Criminal Complaint. Given the late disclosure, Appellant was not
afforded an opportunity to explore the allegations at the
preliminary hearing. See N.T.[] Prelim. Hrg., 2/28/17. The
attorney for the Commonwealth informed counsel of this
additional information the week before trial. While Appellant had
an opportunity to prepare for cross-examination, the
complainant’s late disclosure of this third occurrence limited any
ability to impeach on any inconsistencies from his preliminary
hearing testimony, thereby prejudicing Appellant.
Appellant’s Brief at 30-31.
We address Appellant’s claim under the six-factor test set forth in
Mentzer, although we do so slightly out of order for ease of disposition. As
to the first factor, we agree with Appellant that the amendment changed the
factual scenario underlying the original charges. While the new conduct fell
within the timeline of the criminal information, and alleged similar conduct, it
is undisputed that an additional incident was added to the factual basis of the
charges. Consequently, under the third factor, this additional incident was
not developed at the preliminary hearing. Under the fourth factor, however,
we conclude that the description of the charges remained the same. No new
charges were added to the criminal information, and Appellant was not
subjected to any greater criminal penalty due to the amendment.
Regarding the second factor, Appellant was not surprised by the
evidence of an additional incident, as he had been promptly notified by the
Commonwealth of J.C.’s new allegation prior to trial and, notably, Appellant
did not seek a continuance to prepare to face the new allegation. Under the
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fifth factor, we must consider whether the amendment caused Appellant to
alter his defense strategy. Appellant makes no specific argument to this
effect, and we ascertain no change from the record. Defense counsel’s
strategy was to construe J.C.’s allegations as fabrications. This theory of the
case did not change, and defense counsel even used the new allegation to
support his argument that J.C.’s testimony was not credible. Finally, under
the sixth factor, we must consider whether Appellant had sufficient notice and
time to prepare. Again, Appellant was notified prior to trial of the new
allegations. Appellant did not seek additional time to prepare, despite the
opportunity to do so.
Balancing these factors, we conclude that Appellant has failed to
convince us that he was prejudiced by the amendment to the criminal
information to include the incident at Uncle Curtiz’s house. While the factual
basis of the criminal information was expanded, it did not result in additional
charges, or exposure to greater criminal penalties, and it did not change the
defense’s strategy or theory of the case. And, although Appellant did not have
the advantage of addressing the incident at the preliminary hearing, he had
notice prior to trial of the new allegation, and took no action to seek additional
time to prepare. Defense counsel was able to cross-examine J.C. about the
incident, and then artfully wove the new disclosure into his argument that
J.C.’s testimony was incredible. Accordingly, Appellant is not entitled to relief
on this claim.
Judgment of sentence affirmed.
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Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2021
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