Com. v. Kennedy, S. ( 2016 )

J-S05042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN MICHAEL KENNEDY,
Appellant No. 315 MDA 2015
Appeal from the Judgment of Sentence March 26, 2014
in the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0001208-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 17, 2016
Appellant, Stephen Michael Kennedy, appeals nunc pro tunc from the
judgment of sentence imposed following his jury conviction of involuntary
deviate sexual intercourse with a child and related offenses.1 He asserts he
was denied counsel for his preliminary hearing, alleges several due process
violations, claims evidentiary errors, and challenges the weight and
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
In his notice of appeal, Appellant incorrectly purports to appeal from the
order granting him PCRA relief and reinstating his direct appeal rights. (See
Notice of Appeal, 2/12/15). A direct appeal is taken from the judgment of
sentence. We have amended the caption accordingly.
J-S05042-16
sufficiency of the evidence. We affirm, in part on the basis of the trial
court’s opinions.2
In its opinions, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them at length here. For clarity and the convenience of the reader
we note briefly that Appellant’s conviction stemmed from an episode on the
night of January 9/10, 2008, when he had the then-five year-old victim
perform oral sex on him, while he was babysitting her and her younger
sister. The victim informed her grandmother, and an investigation began.
Immediately preceding trial, after notice by the Commonwealth, the
court conducted a Tender Years hearing. At trial a serologist and a DNA
expert testified that Appellant’s DNA was found in seminal fluid on a
comforter (blanket) in the bedroom of the victim’s mother, where the victim
testified the sexual assault occurred. Appellant testified on his own behalf,
denying that anything inappropriate happened. (See N.T. Trial, 1/09/14, at
174). He denied knowledge of how the DNA got on the blanket, but
maintained that he had borrowed it previously, right after Thanksgiving,
when he first moved into his apartment. (See id. at 179, 190). The
____________________________________________
2
The trial court filed an opinion explaining its order which denied the post-
sentence motion, on August 1, 2014. The trial court also filed a Rule
1925(a) opinion on April 15, 2015, which included a reference to its prior
opinion of August 1, 2014. We attach a copy of both opinions.
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victim’s mother testified that she had only received the comforter weeks
later, as a Christmas gift. (See id. at 142).
After his jury conviction of all counts, Appellant, through preceding
counsel, filed an omnibus post-sentence motion. (See Post Sentence
Motions, 4/04/14). The motion sought a new trial, alleging the verdict was
against the weight of the evidence. Appellant also objected to the trial
court’s admission of testimony about the victim’s previous statements to her
grandmother, a Children and Youth Services case worker and a police
officer, all of whom had investigated the victim’s claims, under the Tender
Years Doctrine. (See id. at 2). Finally, Appellant objected generally to the
sufficiency of the evidence. (See id. at 3).
The trial court denied the post-sentence motion on August 1, 2014.
Appellant’s previous direct appeal was quashed for untimeliness on October
6, 2014. Appellant filed a pro se Post Conviction Relief Act (PCRA) petition,
42 Pa.C.S.A. §§ 9541–46, on December 22, 2014. On the same date the
PCRA court appointed Appellant’s current counsel.
After his direct appeal rights were reinstated, on January 27, 2015,
this nunc pro tunc appeal followed. Current counsel filed a new statement of
errors. (See Concise Statement, 2/23/15); see also Pa.R.A.P. 1925(b). As
already noted, the trial court filed a Rule 1925(a) opinion on April 15, 2015,
which included a reference to its prior opinion of August 1, 2014. See
Pa.R.A.P. 1925(a).
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On appeal, Appellant raises twelve issues, framed as the following
eight questions, for our review:
1. [W]as [Appellant] denied his constitutional right to legal
representation when he was not afforded an attorney for his
[p]reliminary [h]earing, where [Appellant] explicitly requested
representation[?]
2. [W]as [Appellant] denied his right to due process when
he was not given the requested records of his [p]reliminary
[h]earing, which could have been used to impeach witnesses’
testimonies at [t]rial[?]
3. [W]as [Appellant] denied his right to due process when
the Commonwealth failed to disclose evidence to defense until
minutes before the commencement of [t]rial, where the
Commonwealth had had said evidence in its possession for
several years, and where [Appellant] had requested the
disclosure of all evidence, as [Appellant] was unable to examine
said evidence and adequately consult with [t]rial [c]ounsel so as
to prepare a valid defense[?]
4. [W]as [Appellant] denied his right to due process when
the Commonwealth failed to disclose information regarding the
alleged victim’s mother and guardian who were involved with
police charges and a pending Children and Youth investigation,
and thereby given plea deals, which allowed for lighter
sentences, and were subsequently sentenced on the day in
which [Appellant] was charged[?]
5. [Did the t]rial [c]ourt [err] when it held a Tender Years
Hearing minutes before Trial, where [Appellant] did not have
sufficient notice of such a proceeding[?]
6. [Did the t]rial [c]ourt [err] when it permitted the
testimony adduced from the Tender Years Hearing to be used at
[t]rial[?]
7. [Was t]he verdict [ ] against the weight of the evidence
adduced at [t]rial, where the DNA did not match the alleged
victim and where the testimonies of witnesses’ [sic] conflicted
with one another[?]
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8. [Was t]he verdict [ ] insufficient to sustain a conviction
of Involuntary Deviate Sexual Intercourse with a Child; Indecent
Assault of a Person Less Than Thirteen (13) Years of Age;
Corruption of Minors; Endangering the Welfare of Children; and
Indecent Exposure[?]
(Appellant’s Brief, at 7-8).
Preliminarily, we are reminded of the observation by the
Honorable Ruggero J. Aldisert, Senior Circuit Judge of the United
States Court of Appeals for the Third Circuit, that this Court has
previously cited in Kenis v. Perini Corp., 452 Pa. Super. 634,
682 A.2d 845 (1996), as well as other cases:
When I read an appellant’s brief that contains ten or
twelve points, a presumption arises that there is no merit
to any of them. I do not say that it is an irrebuttable
presumption, but it is a presumption that reduces the
effectiveness of appellate advocacy. Appellate advocacy is
measured by effectiveness, not loquaciousness.
Id. at 847 n. 3 (citations omitted); see also Commonwealth
v. Snyder, 870 A.2d 336, 340 (Pa. Super. 2005) (“[T]he
effectiveness of appellate advocacy may suffer when counsel
raises numerous issues, to the point where a presumption arises
that there is no merit to any of them.”) (citations omitted).
J.J. DeLuca Co. Inc. v. Toll Naval Associates, 56 A.3d 402, 409-10 (Pa.
Super. 2012).
In his first issue, Appellant asserts that he was denied his
constitutional right to counsel at his preliminary hearing even though he
“explicitly requested representation.” (Appellant’s Brief, at 13). The trial
judge notes that this claim and certain additional claims were not raised until
Appellant filed his concise statement of errors. (See Trial Court Opinion,
4/15/15, at unnumbered page 6). We observe that Appellant does not
reference in his brief where this issue was properly raised and preserved
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with the trial court. Accordingly, this issue is waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”).
Appellate courts in Pennsylvania routinely decline to entertain
issues raised on appeal for the first time. Indeed, the
Pennsylvania Appellate Rules of Procedure specifically proscribe
such review. See Pa.R.A.P. 302(a). The Rules and case law
indicate that such a prohibition is preferred because the absence
of a trial court opinion can pose a “substantial impediment to
meaningful and effective appellate review.” Further, appellate
courts normally do not consider matters outside the record or
matters that involve a consideration of facts not in evidence.
Most importantly, appellate courts do not act as fact finders,
since to do so would require an assessment of the credibility of
the testimony and that is clearly not our function.
Commonwealth v. Grant, 813 A.2d 726, 733-34 (Pa. 2002) (case citations
and internal quotation marks omitted). Moreover, it would not merit relief.
In a predominantly narrative driven argument which relies largely, if
not exclusively, on Appellant’s personal recollections, Appellant maintains
that the prosecutor told him that counsel to represent him at the preliminary
hearing had left his office, was on his way to court, and other similar
assurances. (See Appellant’s Brief, at 14).3 Nevertheless, no counsel
arrived.
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3
The Commonwealth vigorously disputes all of these claims and insists that
Appellant did not ask for representation, calling Appellant’s facts “an
absolute lie.” (Commonwealth’s Brief, at 7).
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There is no transcript of the preliminary hearing. (See Trial Ct. Op.,
4/15/15, at unnumbered page 4). Consequentially, there is no support for
any of Appellant’s claims in the certified record.
This Court cannot meaningfully review claims raised on
appeal unless we are provided with a full and complete certified
record. Commonwealth v. O'Black, 897 A.2d 1234, 1240
(2006). This requirement is not a mere “technicality” nor is this
a question of whether we are empowered to complain sua sponte
of lacunae in the record. In the absence of an adequate certified
record, there is no support for an appellant’s arguments and,
thus, there is no basis on which relief could be granted.
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006), appeal
denied, 916 A.2d 632 (Pa. 2007).
Moreover, even assuming for the sake of argument that Appellant did
not receive the assistance of counsel that he requested for the preliminary
hearing, he is not automatically entitled to a reversal of his conviction.
It is axiomatic that the preliminary hearing is a “critical
stage” of a criminal proceeding, at which Appellant is entitled to
the assistance of effective counsel. Coleman v. Alabama, 399
U.S. 1, 90 S. Ct. 1999, 26 L.Ed.2d 387 (1970); Commonwealth
v. Rines, 247 Pa. Super. 429, 372 A.2d 901 (1977);
Commonwealth v. Redshaw, 226 Pa. Super. 534, 323 A.2d 92(1974). However, lack of representation at a preliminary
hearing must result in specific prejudice to a defendant,
Coleman, supra; Commonwealth v. Sawyer, 238 Pa. Super.
213, 357 A.2d 587 (1976), that is, it is subject to the harmless
error test. See Redshaw, 226 Pa. Super. at 536, 323 A.2d at
93. “If Appellant suffers no prejudice, he is entitled to no
remedy.” Rines, 247 Pa. Super. at 432, 372 A.2d at 903(citation omitted).
Commonwealth v. Carver, 436 A.2d 1209, 1211 (Pa. Super. 1981)
(emphases added).
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Here, Appellant offers mere generalities about the benefit of counsel
who could have asked “legally-appropriate questions” at the preliminary
hearing. (Appellant’s Brief, at 18). He suggests an identification issue but
fails to develop it and offers absolutely no authority whatsoever in support of
it. (See id.). Instead, he basically tries to blame Charles Tapley, a friend
and visitor that night. Tapley testified at trial. He claimed he just came to
deliver cigarettes to Appellant and only stayed briefly. (See N.T. Trial,
1/09/14, 153-54). The jury was able to weigh the testimony of both men
and weigh their credibility.
In any event, identification is not seriously at issue in this case, where
the victim knew Appellant as the babysitter who in fact had babysat her and
her sister at least one previous night as well as the night in question. He
was a friend of the family through the mother’s boyfriend. The victim
identified Appellant by name to her grandmother as her assailant.
Appellant’s first issue is waived and would not merit relief.4
In his second issue, Appellant claims a denial of due process in the
failure to provide him with the transcript of the preliminary hearing. (See
Appellant’s Brief, at 7). This issue is moot. We defer to the trial court’s
____________________________________________
4
We also note that this Court has held that “[o]nce appellant has gone to
trial and been found guilty of the crime, any defect in the preliminary
hearing is rendered immaterial.” Commonwealth v. Jackson, 849 A.2d
1254, 1257 (Pa. Super. 2004) (citing Commonwealth v. Tyler, 587 A.2d
326, 328 (Pa. Super. 1991), appeal quashed, 617 A.2d 1263 (Pa. 1992)).
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finding, previously noted, that a transcript of the preliminary hearing does
not exist. Appellant’s second issue does not merit relief.5
Appellant’s third issue challenges the delivery of evidence only minutes
before trial began. (See Appellant’s Brief, at 7). The trial court notes this is
one of the issues raised for the first time in the concise statement. (See
Trial Ct. Op., 4/15/15, at unnumbered page 6). Appellant does not
reference any objection to the trial court, request for a delay of trial or a
continuance, or any other objection whatsoever prior to the filing of the
concise statement. (See Appellant’s Brief, at 20-23). Appellant’s issue is
waived. See Pa.R.A.P. 302(a).
Appellant’s fourth claim is that the Commonwealth failed to advise him
until shortly before trial of mother’s and guardian’s involvement with the
police and Children and Youth Services. (See Appellant’s Brief, at 4-5, 23-
25). It fails for the same reason. (See Trial Ct. Op., 4/15/15, at
unnumbered page 6); see also Pa.R.A.P. 302(a).
Appellant’s fifth and sixth claims challenge the trial court’s admission
of testimony under the Tender Years doctrine, after a hearing, before trial.
(See Appellant’s Brief, at 8). He objects to the timing of the hearing and the
use of testimony at trial. (See id. at 25-28). The claims do not merit relief.
____________________________________________
5
Moreover, we note that, because no testimony by Appellant from the
preliminary hearing was offered at trial, he suffered no prejudice from the
use of uncounseled testimony.
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The standard of review governing evidentiary issues is
settled. The decision to admit or exclude evidence is committed
to the trial court’s sound discretion, and evidentiary rulings will
only be reversed upon a showing that a court abused that
discretion. A finding of abuse of discretion may not be made
“merely because an appellate court might have reached a
different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.”
Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 636
(2010) (citation and quotation marks omitted); see also
Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24, 48
(2011). Matters within the trial court’s discretion are reviewed
on appeal under a deferential standard, and any such rulings or
determinations will not be disturbed short of a finding that the
trial court “committed a clear abuse of discretion or an error of
law controlling the outcome of the case.” Commonwealth v.
Chambers, 602 Pa. 224, 980 A.2d 35, 50 (2009) (jury
instructions)[.]
Commonwealth v. Koch, 106 A.3d 705, 710-11 (Pa. 2014).
Here, we affirm on the basis of the trial court’s opinion. (See Trial
Court Opinion, 8/01/14, at 10-16) (finding Appellant had adequate notice of
hearing; and concluding testimony contained sufficient indicia of reliability,
including spontaneity and consistency, victim’s use of terminology that was
appropriate for a child of her age, and was corroborated by physical
evidence). Appellant’s fifth and sixth claims do not merit relief.
Appellant also challenges the weight and the sufficiency of the
evidence. (See Appellant’s Brief, at 8; see also id. at 28-49). Appellant
presents, at some length, an account of the incident, highlighting perceived
inconsistencies in the narrative based on his review of trial testimony. (See
id.).
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As recognized by Appellant, only if the evidence is so unreliable or
contradictory as to make any verdict based on it pure conjecture, is a new
trial based on a weight claim warranted. (See id. at 4). Also, on
sufficiency, Appellant acknowledges that it was the province of the jury as
factfinder to determine the weight of the testimony and to believe all, part or
none of the evidence. (See id. at 5).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court we conclude
that there is no merit to the weight and sufficiency issues Appellant has
raised on appeal. The trial court opinion properly disposes of the questions
presented. (See Trial Ct. Op., 8/01/14, at 16-21) (concluding: (1) (jury
verdict did not shock one’s sense of justice; and (2) evidence was sufficient
to sustain jury’s verdict of guilty on all charges). Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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Circulated 01/19/2016 11:35 AM
}v I
r··. ·-- ... - -
IN THE COURTOF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO. CP-38-CR-1208-2013
v.
STl=PHEN M. KENNEDY
ORDER OF COURT
AND NOW, this 1st day of August, 2014, upon consideration of Defendant's
Post Sentence Motion, and the Briefs submitted by the parties, it is hereby
Ordered that said Motion is DENIED.
Pursuant to Pa.R.Crim.P. 720(8), Defendant is advised that he has the right
to appeal from this denial to the Superior Court of Pennsylvania. An appeal must
be filed in writing no later than thirty (30) days from the date of this Order.
Defendant has the right to the assistance of counsel in the preparation of an
appeal. In the event that Defendant is indigent, he has the right to appeal in
forma pauperis and to proceed with assigned counsel as provided by Pa.R.Crim.P.
1<·~ I \ \ '
0",-'·,. /
.
·, v' ,I
122. Defendant has the qualified right to bail under Pa.R.Crim.P. 521{8).
BY THE COURT:
JCT/jah
Cc: Megan E. Ryland-Tanner, Esquire \
1
Kimberly Adams, Esquire ./· ~L -~,Ljk``f
Judith A. Huber, Esquire, Law Clerk
PURSUANT TO Pa.R.Crim._P. 114
All parties are .tJ.er,:lbY .n__otifiz9 I
this date: R 1 /7. · Ok
Clerk of courts, Lebanon, PA
2
I
IN THE COURTOF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
I
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO. CP-38-CR-1208-2013
v.
STEPHEN MICHAEL KENNEDY
APPEARANCES:
MEGAN E. RYLAND-TANNER, ESQUIRE FOR THE COMMONiEALTH
ASSITANT DISTRICT ATTORNEY
KIMBERLY ADAMS, ESQUIRE FOR STEPHEN MICHAEL KENNEDY
FIRST ASSISTANT PUBLIC DEFENDER
OPINION, TYLWALK, P.J., AUGUST 1, 2014.
After a jury trial on January 9, 2014, Defendant was convJted of one count
of Involuntary Deviate Sexual Intercourse with a Child, one cbunt of Indecent
Assault, one count of Corruption of Minors, one count of Endang[ring the Welfare
of Children and one count of Indecent Exposure.1 The chargles stem from an
incident which occurred overnight on January 9 and 10, 2008 when Defendant
1
Counts 1 through 5, 18 Pa.CS.A. §3123(b), 18 Pa.CS.A. §3126(a)(7), 18 Pa.CS.A. §6301(a) 1), 18 Pa.CS.A. §(a)(l)
and 18 Pa.CS.A.§(a), respectively.
1
was babysitting the two young daughters of his next-door-neighber, Nicole 1-911
("Nicole"). On May 28, 2014, he was sentenced, in absentia, as follows:
Count 1 Involuntary Deviate Sexual Intercourse
with a Child 10- 30Jyears
Count 2 Indecent Assault
Count 3 Corruption of Minors 1- 3 vears
I
Count 4 Endangering the Welfare of Children 1- 3 years
I
Count 5 Indecent Exposure 1- 3 years
I
The Sentence was to be computed from June 27, 2013 and to run concurrently.
Defendant has filed a Post Sentence Motion which is before the Court for
disposition.
In anticipation of the trial in this matter, the Commonwealth filed a Tender
I
Years Notice regarding its intention to introduce testimony of statements the
I
minor victim, A.H., had made to her grandmother, Bonita Heisey
("Grandmother"), Lebanon County Children and Youth ("CVS") caseworker Ana
Marquez ("Marquez"), and Sergeant Gerald Cassel ("Sergeant! Cassel") of the
South Londonderry Township Police Department. We conducted a Tender Years
Hearing ("TYH") on January 9, 2014 immediately prior to the commencement of
2
the jury trial. At the TYH, the Commonwealth presented fhe testimoriv or
Grandmother, Marquez, and Sergeant Cassel.
Grandmother testified that she was driving A.H. and her younger sister to
the playground on January 13, 2008 when A.H. commented that she had been
kissed. (TYH N.T. at 4-5) When Grandmother asked who had kilsed her, A.H. said
I
that it was "Mike" and that he kissed her on the lips like a man kisses a woman
I
and then a kiss below on her bottom half and that this had occurred when he was
I
babysitting. (TYH N.T. at 4-5, 8) Grandmother described A.1.'s comments as
occurring during a normal conversation and noted that A.H. was extremely calm
I
and acted as if it were "no big deal." (THY N.T. at 6) Grandmother then allowed
A.H. to run around the playground and engage in her normal activities. (THY N.T.
I
at 6-7) As they were playing, A.H. related to Grandmother that Defendant had
I
touched her younger sister, and that he and A.H. took off their clothing and
i
danced around the living room and then went to Nicole's bedroom. (THY N.T. at
I
7) A.H. commented that she had to kiss his penis and that Defendant then made
. I
it "rain" while she was sitting on Nicole's bed. (THY N.T. at 7-8) Grandmother
told A.H. that "this was a sick person who needed to see a doctor" and that
"things like this shouldn't happen." (TYH N.T. at 9) A few days later, when
Grandmother was bathing A.H., A.H. told her that A.H. had beJ lying when she
3
had said that Defendant had put his hands down the younger sister's pants. (THY
N.T. at 17) Grandmother explained that A.H. would often say that she was
"lying" when she was scared or ashamed so that she would not get into trouble.
(THY N.T. at 17)
Marquez testified that she had been present at an interview of A.H. which
was conducted on March 8, 2010 at the CVS Office. (TYH N.T. at 21-22) Detective
James Grumbine and Nicole were also present at that interview.. (TYH N.T. at 22)
During that interview, A.H. appeared very nervous and uncomfortable. (TYH N.T.
at 23) A.H. answered some general questions regarding her age, etc., but as soon
as the discussion turned to body parts and whether anyone had hurt her body,
she became nervous and responded "I don't know" to the questions. (TYH N.T. at
22) After stating that Defendant was "bad," she refused to explain and became
very uncomfortable. (TYH N.T. at 23-24) At that point, the interview was
terminated. (TYH N.T. at 24)
Two years later on May 17, 2012, Marquez interviewed A.H. alone when
she was nine years old. (TYH N.T. at 24-25) The day before she interviewed
A.H., Marquez had interviewed Defendant and acknowledged that she was able to
ask A.H. questions based on information provided by Defendant. (TYH N.T. at 31)
During that two-year interval, A.H. had become familiar with Marquez due to CVS
4
dealings with the family. (TYH N.T. at 25, 30-32) A.H. was much more verbal and
comfortable with Marquez by that point as she had learned that CVS offered help
to families and that their involvement did not mean that she would be taken from
her family. (TYH N.T. at 31) A.H. told Marquez that one night when Defendant
was babysitting, he asked her for a kiss, and that he "French kissed" her. (TYH
N.T. at 26) A.H. continued that Defendant had put his hand on her "pee pee"
under her pajamas, that he took her back to her mother's bedroom and had her
touch his "pee pee" with her hand and her mouth. (TYH N.T. at 26) When she did
so, pee came out of his "pee pee" and went on the bed. (TYH N.T. at 26) She
described the taste of the pee in her mouth as "gross." (TYH N.T. at 26) When
A.H. spoke of her "pee pee," she pointed to her vaginal area. (TYH N.T. at 27)
At the TYH, Sergeant Cassell testified that once this matter was reported,
he set up a forensic exam for A.H. at the Children's Resource Center ("CRC"). He
also went to A.H.'s home and collected a comforter from Nicole's bed the day he
received the report. (TYH N.T. at 39) He observed an interview, via close-circuit
television, which was conducted at the CRC by Detective Grumbine on January 16,
2008. (TYH N.T. at 35) Sergeant Cassel explained that A.H. had "shut down"
during that interview. (TYH N.T. at 35)
5
In 2012, Sergeant Cassel interviewed A.H. himself after receiving
notification from Nicole that A.H. had indicated that she recalled this incident and
was ready to speak with the police. (TYH N.T. at 36-37) Prior to conducting that
interview, he was provided with a written statement prepared by A.H. (TVH N.T.
at 37, Exhibit "2") This interview was recorded and the recording was admitted at
the TYH as Exhibit "3." Sergeant Cassel also spoke to Nicole, Grandmother, and
the CRC play therapy staff at various times before the interview. (TYH N.T. at 45-
46) He acknowledged that his interview was in the form of question and answer
and that he did· provide some information during the questioning and gave
positive reinforcement when A.H. gave useful information in her responses. (TYH
N.T. at 46-47) During the interview, A.H. gave the same factual account of the
incident as she had related to Grandmother and Marquez. (Exhibit "3") At the
conclusion of the TYH, we ruled that all of the statements had the sufficient
indicia of reliability to be presented to the jury at trial.
At the jury trial, Grandmother, Marquez and Sergeant Cassel testified as to
the statements A.H. had made to them. Nicole testified that she had asked
Defendant to babysit her two daughters for the overnight hours of January 9 to
10, 2008 while she worked the night shift at her job. (N.T. 1/9/14 at 38, 40) At
6
2
that time A.H. was five years of age and her younger sister was two years old.
(N.T. 1/9/14 at 38, 40) When she returned home from work in the morning, the
girls were lying on the couch and loveseat in the living room. (N.T. 1/9/14 at 51-
52) She explained that this was unusual as the girls had their own bedrooms.
(N.T. at 52) Defendant was asleep on the living room floor. (N.T. 1/9/14 at 54)
The following day, A.H. told Nicole that "Mike" had kissed her. (N.T. 1/9/14
at 41) Nicole explained that Defendant's middle name is Michael and that he
usually goes by that name. (N.T. 1/9/14 at 38) Nicole testified that Defendant
was a friend of her boyfriend's and that he had stayed with them for a short time
around Thanksgiving before he had moved into the apartment next door so that
A.H. was familiar with him. (N.T. at 51) Nicole testified that after this incident,
A.H. became very uncomfortable around men. (N.T. at 43-44)
After Grandmother told Nicole about the conversation she had with A.H. at
the playground, Nicole contacted the South Londonderry Police Department and
Sergeant Gerald Cassel then initiated his investigation. (N.T. at 41) Sergeant
Cassel explained that he had taken the comforter from Nicole's bed after finding
2
A.H.'s date of birth is June 7, 2002.
7
positive indications of bodily fluids on it with the BlueMax flashlight. (N.T. at 79-
80)
Angela DiFiore, a forensic DNA scientist with the Pennsylvania State Police,
testified regarding her analysis of the DNA which was found on the comforter.
She testified that of two samples which were tested, there were sufficient alleles
to pull two DNA profiles. (N.T. at 148) One belonged to Defendant and one
belonged to another unidentified individual which did not match A.H. (N.T. at
148-150) DiFiore noted that Defendant's DNA was associated with the sperm
fraction of the sample and that the unidentified DNA was associated with the
non-sperm part of the samples. (N.T. at 140) DiFiore testified that the non-sperm
portion could have been from skin cells, saliva, or other matter. (N.T. at 140)
Defendant also testified at the jury trial. He claimed that the comforter had
been loaned to him by Nicole when he had been living in the apartment next door
shortly after Thanksgiving 2007 and that he had not washed it prior to returning it
to her. (N.T. at 161-162, 179) However, Nicole testified that she had received the
comforter as a Christmas gift only a week or two prior to the incident and that she
had not owned it when she had provided bedding to Defendant. (N.T. at 42, 57)
Both Nicole and Defendant testified that they had never engaged in sexual
relations together. (N.T. at 43, 178) Nicole also testified that she had never had
8
sexual relations in her bedroom after receiving the comforter because her
boyfriend at the time of the incident was incarcerated. (N.T. at 43, 178)
At the jury trial, A.H., by then eleven and a half (11 Yi) years old, testified
that when she was five years old, Defendant had given her a tongue-to-tongue
kiss, placed her hand on his "private," told her to suck his "private," and "peed" in
her mouth. (N.T. at 8) A.H. indicated that she was on her mother's bed when she
had Defendant's private part in her mouth. (N.T. at 10) When shown an
anatomical drawing, A.H. identified the picture as representing a boy and circled
the penis to define the "private part." (N.T. at 9, Exhibit "1")
At trial, Defendant testified that he had given both of the girls a kiss
goodnight on the forehead, but that he had engaged in no inappropriate conduct.
(N.T. at 169, 173-174) Defendant explained that the following day he went to
Nicole's apartment and Nicole asked him if he kissed A.H. (N.T. at 175) He
claimed that after he denied having done so, Nicole called to A.H. and A.H.
screamed "I am lying, I am lying, I am lying." (N.T. at 175)3
Defendant further testified that on the night of this incident, another man,
Charles Tappley, had also been in Nicole's apartment playing video games and
3
Grandmother testified that A.H. would often say that she was lying when she felt scared or uncomfortable or was
afraid of getting into trouble. (N.T. at 32)
9
drinking beer. (N.T. at 169) However, Tappley was not interviewed until six years
later, on January 2, 2014. (N.T. at 156) Tappley was called by Defendant to
testify at trial. However, he could only recall being in the apartment for a short
period of time that evening to bring cigarettes to Defendant. (N.T. at 153-154)
TestimonyPursuant to Tender Years Act
Defendant first argues that he is entitled to a new trial because we erred in
admitting the statements which A.H. made to Grandmother, Marquez, and
Sergeant Cassel. The admission of hearsay statements made by an alleged victim
of a sexual offense who is twelve years or younger is controlled by the Tender
Years Act, 42 Pa.CS.A. §5985.1:
§ 5985.1. Admissibilityof certain statements
(a) General rule.--An out-of-court statement made by a child victim
or witness, who at the time the statement was made was 12 years of
age or younger, describing any of the offenses enumerated in 18
Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault),
29 (relating to kidnapping), 31 (relating to sexual offenses), 35
(relating to burglary and other criminal intrusion) and 37 (relating to
robbery), not otherwise admissible by statute or rule of evidence, is
admissible in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence is
relevant and that the time, content and circumstances of the
statement provide sufficient indicia of reliability; and
(2) the child either:
10
(i) testifies at the proceeding; ....
42 Pa.CS.A. §5985.1. Any statement admitted under this exception to the
hearsay rule must possess sufficient indicia of reliability, as determined from the
time, content, and circumstances of its making. Commonwealthv. lukowich., 875
A.2d 1169 (Pa. Super. 2005). In determining the reliability of a statement, the
court may consider various factors, including "the spontaneity and consistent
repetition of the statement; the mental state of the declarant; the use of
terminology unexpected of a child of similar age; and the lack of a motive to
fabricate." Commonwealth v. Hunzer., 868 A.2d 498, 510 (Pa. Super. 2005).
We believe that we were correct in our assessment that the time, content
and circumstances of these statements provided sufficient indicia of their
reliability. A.H.'s initial comments to her mother and Grandmother were totally
unsolicited and were voluntarily offered by A.H. in the normal course of
conversation. These were made in a timely fashion immediately after the
incident when there was little time for A.H. to reflect on what had happened to
her or to fabricate details.
When Grandmother attempted to get additional details about the incident,
she allowed A.H. to go about her normal playground activities and explain the
11
incident in her own terms. Although Grandmother was upset by the substance of
the conversation, she did not show any negative emotion or make any statements
until A.H. had finished relating the incident to her. A.H.'s state of mind at the
time she gave this account to Grandmother was childlike and innocent, was given
in an everyday manner, and exhibited no ill will toward Defendant.
Defendant complains that once A.H.'s account of the incident to
Grandmother had been completed, Grandmother reacted by referring to
Defendant as "sick," and by stating that such things "shouldn't happen." (N.T. at
30-31) He argues that these comments tainted A.H.'s image of him prior to the
interviews which were conducted by the professional authorities. An allegation of
taint must be supported by clear and convincing evidence. Commonwealth v.
Luckowich, supra. We do not believe that Defendant has met this burden here as
we find no evidence to suggest that Grandmother's comments undermined the
reliability of A.H.'s subsequent statements.
A.H.'s account of this incident was nearly identical when given to all of the
witnesses. She consistently described how Defendant kissed her with his tongue
and open mouth, touched her "pee pee" and had her touch his "pee pee" before
having her place her mouth on his "pee pee." She also repeated that when
Defendant "peed" in her mouth, it tasted "gross." When describing what
12
occurred, she pointed to the body part to which she was referring. These are the
terms and gestures that would normally be expected of a child of her age. In all
her statements, A.H. was also consistent in her description of the conversation
between herself and Defendant, Defendant's remarks about kissing, and the
location where each part of the incident took place. There was no evidence to
suggest a motive for A.H. to fabricate her story.4
A.H.'s statements to the witnesses were also corroborated by physical
evidence. A.H. stated that Defendant "made it rain" and that he "peed" in her
mouth while the two were in Nicole's bedroom. Defendant's DNA was found on
stains on the comforter which was taken from Nicole's bed. Both Nicole and
Defendant testified that they had never had sexual relations with each other.
Although there was testimony that Defendant had stayed at Nicole's apartment at
or about Thanksgiving 2008 and Defendant testified that he had borrowed the
comforter from Nicole when he was living next door, Nicole testified that she had
received the comforter as a Christmas gift just one to two weeks prior to the
incident and could not have owned the comforter at any time when Defendant
would have been using her bedding.
4
Defendant contends that A.H. had a motive to fabricate this story in order to prevent arguments between Nicole
and Bonita. We find no merit to this argument. It is unclear how A.H. would have thought that inventing a story of
this nature would lead to harmony between her mother and grandmother.
13
In the 2010 interview when A.H. met with Detective Grumbine and
Marquez, A.H. exhibited signs of being uncomfortable and scared. When a
question was posed, she would immediately respond "I don't know," even before
the question was asked. She would respond "no" to all inquiries, even innocent
test questions to which the normal response would have been affirmative. As a
result, that interview was terminated. However, A.H.'s subsequent statements
were given when she was able to describe the incident and was not afraid to
discuss it.
Marquez allowed A.H. to describe the incident in her own words. Marquez
was trained to interview victims of alleged sexual abuse and had already
conducted many such interviews by the time she met with A.H .. Marquez
explained that although she did ask A.H. some questions, she was careful not to
use direct or leading questions or to ask them in any manner which would
influence A.H.'s response. A.H.'s state of mind was more conducive to providing
relevant accurate information by this point in time and she described, practically
verbatim, the same facts that she had previously told Bonita.
We also reviewed the transcript of Sergeant Cassel's 2012 interview of A.H.
and find nothing inappropriate with regard to his questioning. Although Sergeant
14
Cassel utilized a question-answer format, we found no instances where he
suggested or influenced A.H.'s answers in any way.
Defendant argues that the testimony of Cassel and Marquez was improper
because they had access to and utilized the information which had already been
provided from other sources prior to and throughout their interviews with A.H ..
He contends that such circumstances render their testimony inadmissible under
the Tender Years Act as per the holding in Commonwealth v. luckowich, 875 A.2d
1169 (Pa. Super. 2005). In that case, the court permitted a police officer's
testimony regarding a child's statements regarding allegations of sexual abuse by
the defendant. The Superior Court agreed with the trial court's assessment of the
reliability of these statements, noting that:
... Detective Washburn deliberately and sufficiently limited his
exposure to sources of information who had contact with the victim
prior to his interviewing her .... He testified that he neither reviewed
A.L's statements to Mr. Walczak nor spoke to him concerning A.L. ...
Nor did Detective Washburn have access to the contents of the
interview conducted by "Carol" of the Rape Crisis Center. . ..
Although the statement at issue is in narrative format and does not
repeat verbatim the questions posed and the answers given,
Detective Washburn did testify that he avoided leading questions.
Commonwealth v Luckowich, supra at 1173.
We believe this language was but a part of the court's overall evaluation of
the circumstances under which the statements in question were given by the
15
child-victim. We agree with the Commonwealth that the Tender Years Act does
not require that a child's statements to a witness are only admissible if the
witness does not have any prior knowledge or information regarding the incident.
It is not the possession of such knowledge and information which is relevant to
this determination, but rather how the information is used. Our review of the
testimony and the transcript of Sergeant Cassel's interview reveals no indication
that A.H. was misled by the questioning or that either witness used the
information to suggest or influence A.H.'s responses.
For these reasons, we will deny Defendant's request for a new trial on this
basis.
-Weight of the Evidence
An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. To grant a new trial on the basis that
the verdict is against the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the court.
Commonwealth. v. Childs, 63 A.3d 323 (Pa.Super. 2013). A motion for a new trial
based on a claim that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. Widmer, 744 A.2d at 751-52;
Commonwealth v. Brown., 538 Pa. 410, 648 A.2d 1177, 1189 (1994). A new trial
16
should not be granted because of a mere conflict in the testimony or because the
judge on the same facts would have arrived at a different conclusion; rather, the
role of the trial judge is to determine that 'notwithstanding all the facts, certain
facts are so clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice. Commonwealth v. Antidormi, 84 A.3d
736 (Pa.Super. 2014). The jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial based on a
weight of the evidence claim is only warranted where the jury's verdict is so
contrary to the evidence that it shocks one's sense of justice. Commonwealth v.
Houser, 18 A.3d 1128 (Pa. 2011).
Defendant charges that the verdict was contrary to the weight of the
evidence because the jury placed too much emphasis on the testimony of the
Commonwealth's witnesses. He argues that the testimony of Grandmother,
Marquez and Sergeant Cassel should have been excluded under the Tender Years
Act and that this testimony gave too much credibility to the victim, especially in
light of the contrary testimony he presented at trial. In addition, he argues that
undue weight was given to the testimony of DiFiore, the Commonwealth's
Forensic expert, in light of the fact that she acknowledged the presence of a
· second DNA profile in the samples obtained from the comforter.
17
Viewing the evidence in its entirety, we do not find the jury's verdict to be
shocking in any manner. A.H. herself testified to the abuse perpetrated upon her
by Defendant. Three other witnesses - Grandmother, Marquez and Sergeant
Cassel - testified as to statements of identical factual content which A.H. made
regarding the incident and this testimony was properly admitted under the
Tender Years Act. The jury was free to believe or disbelieve the testimony of all of
the witnesses and to accord to their testimony whatever weight it found
appropriate. It obviously found the testimony offered by the Commonwealth's
witnesses to be more reliable and credible than that offered by Defendant and we
find no reason to disturb its findings.
DiFiore testified that some of the semen portion of the stain on the
comforter from Nicole's bed contained Defendant's DNA profile. This comforter
was on the bed at the time when Defendant "made it rain" and "peed" in A.H.'s
mouth. The unidentified DNA was from the non-semen portion of the stain.
DiFiore confirmed that the other DNA could have come from another person who
lived in the household and was from other bodily matter. The presence of this
other DNA does not undermine the finding that Defendant had ejaculated on the
comforter.
Accordingly, we will deny Defendant's request for a new trial on this basis.
18
Sufficiency of the Evidence
Defendant also argues that there was insufficient evidence to support the
jury's verdict. He claims that the Commonwealth's evidence was insufficient as to
all counts due to the presence of the separate DNA profile, which was never
identified, coupled with the fact that another person, Charles Tappley was in the
apartment on the night of this incident.5 Defendant asserts that he was only told
that his DNA had been found, not that it was on the comforter, and that once he
learned that fact he provided a credible explanation as it had been loaned to him
prior to its being confiscated by Sergeant Cassel. He claims that the issue of when
Nicole received the comforter was never established and that there were
numerous other stains on the comforter, some of which contained seminal fluid
but were never analyzed.
When considering a claim challenging the sufficiency of the evidence, the
court must determine whether the Commonwealth established beyond a
reasonable doubt every element of the offense charged by considering the entire
trial record and all the evidence received, and view all reasonable inferences
5
Defendant complains that Tappley was not contacted until seven days prior to the trial. However, he does not
indicate what evidence would have been obtained had Tappley been included in the investigation earlier.
Defendant was certainly free to contact Tappley prior to that time.
19
drawn therefrom in the light most favorable to the Commonwealth as the verdict
winner. Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 2008). The defendant's
guilt may be established by direct evidence, circumstantial evidence, or both.
Commonwealth v. Segida, 985 A.2d 871 (Pa. Super. 2009). It is within the
province of the jury to determine the credibility of the witnesses.
Commonwealth v. Burns, 765 A.2d 1144 (Pa. Super. 2000).
After viewing the evidence in the light most favorable to the
Commonwealth here, we find there was sufficient evidence to sustain the jury's
verdict of guilt on these charges. The jury was aware of Tappley's visit to the
apartment that evening and DiFiore's testimony regarding the separate DNA
found on the comforter. It was free to consider this evidence in whatever manner
it found appropriate. It was also presented with A.H.'s testimony, which was
bolstered by the statements she made to the other Commonwealth witnesses,
which identified Defendant as the one who committed these acts upon her. The
fact of Defendant's DNA being present on the comforter corroborates A.H.'s
testimony of the events which took place in Nicole's bedroom. Whether any
other DNA was found in any of the other stains present on the comforter does not
change the fact that Defendant's semen was also present. The jury was free to
accept this evidence as well as Nicole's testimony as to the date she had received
20
the comforter as a Christmas gift. The jury was likewise entitled to disregard
Defendant's explanation for the presence of his DNA and any inference he hoped
to assert by presenting evidence of Tappley's presence in the apartment that
evening.
We will deny Defendant's request for acquittal on this basis.
21
\ I
... 11:37
Circulated 01/19/2016 <.:!,,\AM I I
ENTERED & FILED SC",A~!?i;,S)~!it
CLERK OF COURTS .. -- _ __, \•
LEBAl~ON, PA \
ZG15 APR 15 Afl 11 38
IN THE COURTOF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO. CP-38-CR-1208-2013
V.
STEPHEN M. KENNEDY
ORDER OF COURT
AND NOW, to wit, this 15th day of April, 2015, we issue the attached
Opinion under Pa.R.A.P. 1925. We direct the Lebanon County Clerk of Courts to
forward this Opinion and the entire file to the Superior Court of Pennsylvania as
promptly as possible.
BY THE COURT:
JCT/jah
Cc: Megan E. Ryland-Tanner, Esquire 5,\'t/L-
Erin Zimmerer, Esquire/60 South Main Street, Manheim, PA 17545 -fl'ltw!"'i
Judith A. Huber, Esquire, Law Clerk ~
PURSUANT TO Pe.R.Cr!m. P. 114
Ail parties are irrebri1i~!=_d
thfs date: JI -- ;5 • ft
Clerk of Courts, Lebanon, PA
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO. CP-38-CR-1208-2013
v.
STEPHEN M. KENNEDY
APPEARANCES:
MEGAN RYLAND-TANNER, ESQUIRE FOR THE COMMONWEALTH
ASSISTANT DISTRICT ATTORNEY
ERIN ZIMMERER, ESQUIRE FOR STEPHEN M. KENNEDY
MONTGOMERY & ZIMMERER, LLC
OPINION, TYLWALK, P.J., APRIL 15, 2015.
Defendant was charged with one· count of Involuntary Deviate Sexual
Intercourse with a Child, one count of Indecent Assault, one count of Corruption
of Minors, one count of Endangering the Welfare of Children and one count of
Indecent Exposure.1 After a jury trial on January 9, 2014, he was convicted of all
charges. The Commonwealth had filed a Notice to Proceed Under Tender Years
Doctrine, 42 Pa.CS.A. §5985.l(a)(2)(i) on December 13, 2103 and we had
conducted a Tender Years Hearing immediately prior to the commencement of
1
Counts 1 through 5, 18 Pa.CS.A. §3123(b), 18 Pa.CS.A. §3126(a)(7), 18 Pa.CS.A. §6301(a)(l), 18
Pa.CS.A.4304(a)(l), and 18 Pa.CS.A. §3127(a), respectively.
trial on January 9, 2014. Defendant was sentenced, in absentia/ to an aggregate
term of ten {10) to {30) years' incarceration on March 26, 2014.
Defendant filed a timely Post-Sentence Motion asserting that {1) we had
erred in permitting statements of various witnesses from the Tender Years
Hearing, (2) that the jury's verdict was against the weight of the evidence
presented at trial, and {3) that there was insufficient evidence to support the
verdict of the jury. We denied the Post-Sentence Motion by Order of August 1,
2014. Defendant filed a Notice of Appeal of that Order on September 3, 2014.
The Appeal was quashed as untimely by the Superior Court by Order dated
October 6, 2014. Thereafter, Defendant proceeded under the Post-Conviction
Relief Act, 42 Pa.CS.A. §9541 et seq and we restored his appellate rights by Order
of January 28, 2015.
Defendant filed a second Notice of Appeal on February 12, 2015. In his
Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.
1925{b), he lists the following issues to be addressed on appeal:
1. Defendant was denied the assistance of an attorney for his Preliminary
Hearing, despite his request for representation;
2
On the date scheduled for Sentencing, Defendant refused to leave his cell at Lebanon County Correctional Facility
to appear before the Court.
2. Defendant was not provided with the transcript of his Preliminary
Hearing;
3. The Commonwealth disclosed evidence to the defense for the first time
only minutes prior to the commencement of the jury trial in this matter;
4. The Commonwealth failed to disclose information that the victim's
mother and guardian were involved with police and Lebanon County
Children and Youth Services and were given lesser sentences due to this
action;
5. Defendant did not have sufficient notice of the Tender Years Hearing;
6. The verdict was against the weight of the evidence regarding the
Commonwealth's DNA analysis and conflicting witness testimony; and
7. The evidence was insufficient to sustain a verdict of guilty with regard to
these charges.
We addressed Defendant's challenges to the weight and sufficiency of the
evidence and the admission of testimony from the Tender Years Hearing .in our
Order and Opinion resolving his Post-Sentence Motion and we refer to the
reasoning set forth therein for appellate review.
With regard to issues raised on appeal,
[i]ssues raised before or during trial are deemed preserved for
appeal whether or not the defendant elects to file a postsentence
motion on those issues. Thus, as long as an issue is preserved before
or during the course of the trial, the litigant need not return to the
trial court and again request the relief after conviction and
sentencing by postsentence motion.
The failure to brief or argue an issue in a postsentence motion
does not waive that issue on appeal as long as the issue was properly
preserved, in the first instance, before or during trial.
26A StandardPennsylvania Practice 2d § 132:610.
Our review of the record reveals that Defendant's Preliminary Hearing was
not recorded by a stenographer and that there is no transcript of that proceeding.
This issue was discussed at Sentencing. Prior to our imposition of Sentence,
Defense counsel indicated that Defendant had requested a transcript of the
Preliminary Hearing and that she had investigated the possibility of obtaining one;
however, she discovered that there was none in existence after checking with the
Assistant District Attorney who represented the Commonwealth at the
Preliminary Hearing, the office of the District Magistrate who conducted the
Preliminary Hearing, Court Administration, and the Court Reporting Service used
by the Office of the Public defender for private stenographers. (N.T. Sentencing
March 26, 2014 at 3) Defense counsel also advised the Court that she had related
to Defendant the steps she had taken in order to verify that there was no
transcript. (N.T. Sentencing March 26, 2014 at 3)
Defendant also complains of the timeframe with regard to the
Commonwealth's notice that it intended to proceed under the Tender Years
Doctrine. The Commonwealth filed its Notice on December 13, 2013. The Notice
listed all witnesses who were expected to testify at the Hearing and a synopsis of
their testimony. Defendant's trial was listed for the term of Criminal Jury Trials
which was scheduled to commence on January 6, 2014. (See Order dated
November 27, 2013) Defendant knew that his case was listed for the January
2014 Trial Term and therefore knew that the Tender Years Hearing would have to
be conducted prior to the commencement of trial. After Call of the. List was held
on January 6, 2014, Defendant's trial was set for January 9, 2014 with the Tender
Years Hearing immediately preceding it. We believe that the period of over three
weeks' time between the filing of the Notice and the Tender Years Hearing
afforded Defendant ample time to conduct his own investigation and to prepare
his defense. This complaint was raised for the first time in his Concise Statement
on appeal.3 Defendant does not specify any issues which he was unable to
3
Defendant lodged no objection to our conducting the Tender Years Hearing at the time of the Hearing and did
not raise the issue in his Post Sentence Motion.
identify and deal with within this timeframe and we are unable to identify any on
our own.
Defendant also complains that he had requested an attorney to represent
him at the Preliminary Hearing, but that he was denied his right to counsel. In
addition, he contends that the Commonwealth did not disclose certain evidence
to the defense until minutes before the commencement of trial although it had
the evidence in its possession for several years and that, as a result, he was
unable to prepare an . adequate defense. Lastly, he complains that the
Commonwealth failed to disclose to him information regarding the involvement
of the victim's mother and guardian with police and Children and Youth Services.
All of these issues are raised for the first time in the Concise Statement.
There is nothing in the record to apprise us of the specifics of these matters. We
have no information regarding Defendant being denied the services of an
attorney for his Preliminary Hearing or the evidence of which he claims to have
been deprived. At this point in the proceedings, we are unable to conduct a
factual hearing to determine the circumstances surrounding these claims. We do
note that the fact of the family of the victim in this matter being involved with
Children and Youth Services did arise during testimony at both the Tender Years
Hearing and Trial and that Defendant had ample opportunity to utilize this
information during cross-examination and the presentation of his defense at Trial.
(N.T. Trial 1/9/14 at 54, 71; NT Tender Years Hearing 1/9/14 at 25, 30, 32} The
record of this matter is insufficient for us to make any further comments on these
matters. These issues may be better addressed in a proceeding other than this
appeal.