Com. v. Girardi, J. ( 2016 )

J-S53038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JACK EMERY GIRARDI
Appellant No. 364 MDA 2016
Appeal from the Judgment of Sentence January 13, 2016
in the Court of Common Pleas of Lycoming County Criminal Division
at No(s): CP-41-CR-0001977-2014
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 15, 2016
Appellant, Jack Emery Girardi, appeals from the judgment of sentence
entered in the Lycoming County Court of Common Pleas following a jury trial
and his convictions for rape of a child,1 statutory sexual assault,2
aggravated indecent assault of child,3 unlawful restraint of minor by parent─
risk of serious bodily injury,4 incest of minor─complainant under 13 years,5
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3121(c).
2
18 Pa.C.S. § 3122.1(b).
3
18 Pa.C.S. § 3125(b).
4
18 Pa.C.S. § 2902(c)(1).
5
18 Pa.C.S. § 4302(b)(1).
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endangering welfare of children,6 corruption of minors,7 and indecent
assault─complainant under 13 years.8 Appellant challenges the sufficiency
of the evidence, the denial of his motion for a mistrial, and the admission of
a prior recorded interview of Child, his minor daughter, as substantive
evidence. We affirm.
On August 21, 2014, Child was interviewed at the Child’s Advocacy
Center (“CAC”).9 R.R. at 85a.10 The police and Children & Youth Services
request that CAC conduct interviews. Id. at 249a. Sherry Moroz was “a
forensic interviewer at the [CAC] of the Central Susquehanna Valley.” Id. at
244a. Her job was “to conduct an interview of any child who [was] an
alleged victim of or a witness to sexual abuse, physical abuse or violent
crime.” Id. She interviewed Child on August 21, 2014. Id.
6
18 Pa.C.S. § 4304(a)(1).
7
18 Pa.C.S. § 6301(a)(1)(ii).
8
18 Pa.C.S. § 3126(a)(7).
9
The interview was recorded and transcribed. See R.R. at 85a-137a. We
note that the transcript of the interview was not included in the certified
record on appeal. Where the accuracy of a transcript is undisputed, this
Court can consider it even though it was not in the record transmitted to this
Court. Commonwealth v. Barnett, 121 A.3d 534, 545 n.3 (Pa. Super.
2015), appeal denied, 128 A.3d 1204 (Pa. 2015). In the case sub judice,
the Commonwealth chose not to file a brief. Thus, the accuracy of the
transcript of the interview is undisputed. Therefore, we can consider it. See
id.10
For the parties’ convenience, we refer to the reproduced record where
applicable.
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She explained that:
the CAC is a facility-based program that offers a multi-
disciplinary-team approach to the investigation of child
abuse. So in order to have a child come to the CAC there
needs to be some sort of an allegation.
* * *
And at the CAC we provide several services. We
provide an interview. We provide counseling. We provide
medical exams. And we provide a place for─a child-
friendly place, not the most formal place, but a child-
friendly-place, for a team together to determine what the
allegations truly are and what services or actions need to
be taken to assure and maintain the safety and health and
well being of the child.
Id. at 248a.
One copy of the recording of the interview “is retained as part of the
child’s medical record at the CAC, and the other one is released to law
enforcement.” Id. at 250a. The DVD was played for the court. Id. at 252a.
At the time of the interview, Child stated she was seven years old and
starting second grade the following day.11 Id. at 87a. She lives with her
mother and her five-year old brother. Id. at 92a.
[Sherry Moroz]: . . . Is someone worried that something
happened to you?
A: Some things did.
* * *
Q: Okay. So what kinds of things happened?
11
Mother stated that Child was a year ahead in school. R.R. at 32a.
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A: He was touching me.
Q: Okay. Who was touching you?
A: My dad was touching me─
* * *
Q: Yeah, did you tell your mom?
A: I told my mom . . . .
* * *
Q: Okay. Tell me─like start at the beginning and tell me
everything you can think of.
* * *
Q: I remember that he was trying to make me sit on his
thing.
Q: Okay.
A: But he was trying to force me to do it.
Q: Uh─huh.
A: And he was touching my butt with the lotion and in
between it.
Q: Uh─huh.
A: And my thing in the front.
Id. at 96a, 98a. She testified that “[e]very single time [it happened] her
mommy was at work and [her brother] was sleeping.” Id. at 100a.
A: And daddy kept taking me every time in the middle of
the night─
Q: Uh-huh.
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A: ─after he gives me a bath─
Q: Uh-huh.
A: He takes me right in the back bedroom.
* * *
Q: Okay, so what would he do when it was bath time?
A: That’s when he would always make me try to sit on his
thing.
Q: Okay.
A: And he was forcing me to.
Q: Okay.
A: And I was saying no, but he wouldn’t stop.
Q: Okay. All right. So when─when he was wanting you to
sit on his thing, like, where was he?
A: He was in the bathtub with me.
* * *
Q: Okay. Where did his thing go?
A: In my butt.
* * *
Q: Okay. All right. Okay, so you said that sometimes
things would happen in the bathroom in the tub.
A: Or in the back bedroom.
Q: Or the back bedroom, okay. The stuff that happened in
the tub, okay, did it happen in the tub one time or more
than one time?
A: More than one time.
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* * *
Q: . . . Tell me about what would happen in the bedroom.
A: He would do that stuff, like, either rub my ladybug or
belly with that lotion─
* * *
A: He puts his thing in my front thing.
Q: Uh-huh.
A: I tell him no but he won’t stop.
Q: Okay. What does that feel like?
A: I don’t like it when he does it.
Q: Un-huh.
A: Because he hurts me.
Q: Un-huh.
* * *
Q: Okay. And you said that this was happening in 1st
grade?
A: Yeah, when I first started 1st grade.
Q: Okay. All right. Now, what happened that you decided
to tell mommy.
A: I told her what he was doing to me.
* * *
Q: . . . Does anything come out of his thing?
A: No.
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* * *
Q: So I have these picture [sic] so what I’m going to do is
I’m going to put this here. I’m going to circle body parts
and if you could tell me what you call me [sic] those parts,
okay, so I know what you’re talking about for sure. What
do you call right there?
A: Neck
Q: Neck. What do you call that part?
A: Chest.
* * *
A: Ladybug.
* * *
A: Manbug.
* * *
Q: . . . What made you decide to tell?
A: Because it was really bothering me.
* * *
Q: . . . [I]t was just kind of bothering you when you
needed to tell your mom?
A: Uh-huh.
Q: So tell me what you told your mom.
A: I told her the same things that I just told you.
* * *
A: I told her what I told you because I didn’t remember
anything else.
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Q: Okay. Do you think more stuff happened that you don’t
remember?
A: More stuff did happen and I just don’t remember it.
* * *
Q: Uh-huh. Did you ever tell your mom before that?
A: (Shakes head back and forth).
Q: No.
A: Because he wouldn’t let me up and she was already at
work.
Q: Uh-huh. What do you mean he wouldn’t let you up?
A: He was on me and he wouldn’t let me up.
Q: What did that feel like with him on you?
A: He was hurting me and I couldn’t breath[e].
Q: Where was─where were you hurting?
A: He was hurting me on the chest because I couldn’t
breath[e], and I couldn’t breath[e] because he was hurting
me.
Q: Okay.
A: I couldn’t scream because I couldn’t breath[e].
Q: Uh-huh. And tell me, like, did he have any like─like
names that he called you or anything that he would tell
you when that was─when he was doing those things?
A: He was, um─calling me some names─
Q: Uh-huh.
A: ─that he calls mommy when he gets angry.
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Q: Like what?
A: Um, could I just write them down on the paper?
Q: If you want to. Can you write─okay.
A: I really don’t know how to spell the words.
Q: Okay. I think your [sic] spelling bitch?
A: Uh-huh.
Q: Okay, when would he say that to you?
A: He was doing that because I wouldn’t stay still because
I was trying to get up and he kept calling me that word
that I just spelled and some other names, like─he was
saying─he was saying that word.
Q: Okay.
A: And saying to stay still and the end he said this.
Q: Okay. So he was saying─he was saying fuck?
A: He was saying that word─
* * *
Q: [W]hat body parts were involved?
A: He was using.
Q: His manbug, you’re point [sic] to?
A: On my─
Q: On your ladybug?
A: Uh─huh.
Q: So when he was doing that, like, where were you
and─like, how was your body and how was his body?
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A: He was on top of me. I was like this laying down on the
mattress.
Q: Un-huh.
A: And he was like this.
Q: Like─okay.
A: Laying forward on me like this.
Q: Okay. All right, and where was his manbug going?
A: In my thing.
Q: In the front?
A: Uh-huh.
Q: Yeah? And what did that feel like?
A: It felt hard.
Q: Uh-huh.
A: Rusted wood or bark─
Q: Okay.
A: Bark on a tree.
Q: Okay.
A: And it was really hurting me and I told him to stop and he
wouldn’t stop.
Q: Okay. Did you ever see, like any─anything, like, left on your
body when he was finished?
A: Nu-huh.
* * *
Q: . . . So when you were six you told mommy everything?
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A: Yeah.
* * *
Q: And daddy left?
A: Uh-huh.
Q: Did daddy come back then?
A: Nope. . . .
Id. at 100a, 102a, 105a, 107a, 109a-10a, 113a-15a, 122a, 124a-27a, 130a.
On March 23, 2015, a hearing was held to address Child’s competency
to testify at trial. At the hearing, Child testified that she was turning eight
years old. R.R. at 206a.
The Court: Okay. Now, in this case, okay, meaning why
we’re here, you said that your dad did something to you.
[Child]: (Nods head.)
The Court: Right?
[Child]: Yes.
* * *
The Court: . . . [H]ow long ago did this stuff happen?
[Child]: When I was in first grade.
The Court: . . . So how many years ago was that . . . ?
[Child]: . . . A year ago.
The Court: . . . How old were you when it happened? Do
you remember?
[Child]: Six.
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The Court: Six?
[Child]: Actually seven, because it was near the end of the
year.
* * *
The Court: . . . And how many times did it happen?
[Child]: Three times.
The Court: Three times?
[Child]: Or more, I don’t remember.
* * *
The Court: So tell me about the times. Tell me will [sic]
happened.
[Child]: One time I was sleeping and I woke up because I
had to go to the bathroom, and I woke up, and when I was
done my dad told me to get undressed, and he told me to
get in the bath, and while I was getting a bath he got
undressed and got in with me.
The Court: Okay.
[Child]: And while we were waiting for the water I was
being so loud because I was trying to get my mom up, but
then at last I noticed that my mom wasn’t there and my
brother was the one that woke up.
The Court: Okay.
[Child]: And my dad got dressed really quick.
* * *
The Court: And what happened to you when you were in
the tub with your dad?
[Child]: He was trying to make me sit on his man bug.
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The Court: Okay, what’s that?
[Child]: His front private.
* * *
The Court: . . . He tried to make you sit on it?
[Child]: (Nods head).
The Court: What part of you?
Child: The─my butt.
* * *
The Court: . . . And how did he try to make you sit on it?
[Child]: He was forcing me, he was like pushing me down.
* * *
The Court: [H]ow many times did it happen before you
told your mom?
[Child]: Three times.
* * *
And I couldn’t scream or anything like that when he was
on top of me because he was so heavy, and he was going
like this on my mouth. And I could barely breath because
he─
* * *
The Court: . . . Was this the second time or the third time?
[Child]: The second time it was the bathtub, the first time
it was this, then the last time it was also this.
* * *
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The Court: [S]o tell me about those.
* * *
[Child]: He would always get undressed, and he would
take my clothes off when I’m sleeping. I know it because I
always feel it, and then he would get on top of me and do
this, like cover my nose so I can’t scream or breathe or
anything, then I pass out, and when he did this a little bit
later I wake up from him doing this.
* * *
The Court: What did he do with you before you passed
out?
[Child]: He would like get on top of me, unzip his pants
and take then off, take his underwear off, then put his
front private in my front private.
* * *
It would feel like hard, and it would go into my front
private, and it would always be hard─harder, feel like a
piece of metal.
Id. at 213a-16a.
On October 13, 2015, a hearing was held on the Commonwealth’s
motion to admit the recorded interview with Child at the CAC as substantive
evidence pursuant to 42 Pa.C.S. § 5985.1. R.R. at 233a-54a. On October
14, 2015, the court granted the Commonwealth’s motion. Order, 10/14/15.
On October 19, 2015, Child testified at the jury trial. She identified
Appellant as her father. R.R. at 8a.
[The Commonwealth]: . . . Did something happen with
your dad . . . that had to do with a bathroom?
* * *
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[Child]: He would tell me to get undressed, get undressed
while he was getting undressed. Tell me─he would get in
the tub, and he would tell me to get in the tub. He would
tell me to stand up and tell me to sit on his man-bug, but I
wouldn’t. And he was─he had his hands on my shoulders
forcing me to sit down on his man-bug.
Id. at 9a. Child testified that her mom worked at night and she was home
with Appellant and her brother. Id. at 10a. Appellant would carry Child
from her bedroom into the back bedroom. Id.
[The Commonwealth]: . . . What happened in the back
bedroom?
[Child]: He would tell me to get undressed. He was
getting undressed, and he told me to get undressed. He
told me to lay down on my back, so I did. Then he would
lay down over top of me with his belly facing me. And he
would lay down on me, and his man-bug would go into my
lady-bug.
* * *
Q: What would happen when he did that?
A: He would have my mouth covered, so I couldn’t scream
out loud.
Q: With what?
A: His hand.
Q: Did you want to scream out loud?
A: Yes. And I was trying to.
Q: . . . What would he do when he would be on top of you
like that?
A: He would move up and down.
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Q: And you said his man-bug was in your lady-bug?
A: Yes.
Q: And do you remember was it actually inside you?
A: Yes.
Q: And you said he would move up and down?
A: Yes.
Q: And your lady-bug, where on you is your lady-bug?
A: My front private.
Q: And what about you said man-bug, where is a man-
bug?
A: On a man’s front private.
Q: [W]hat did that feel like when he would have it inside
your lady-bug?
A: It would hurt.
Q: And you said you tried to scream?
A: Yes.
* * *
Q: Could you tell him to stop or anything like that?
A: He had my mouth covered, so I couldn’t.
Q: Do you remember how many times this happened in
the back bedroom?
A: Twice.
Id. at 10a-11a.
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On October 20, 2015, the jury found Appellant guilty. On January 13,
2016, Appellant was sentenced to an aggregate term of eighteen to forty
years’ imprisonment. Appellant filed a post-sentence motion, which was
denied. This timely appeal followed. Appellant filed a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and the trial
court filed a responsive opinion.
Appellant raises the following issues for our review:
A. The Commonwealth failed to present sufficient evidence
to support a conviction for the offenses of rape, statutory
sexual assault, aggravated indecent assault and incest
when the Commonwealth’s sole witness failed to offer
consistent testimony regarding what occurred, when it
occurred, how many times it occurred, whether it actually
occurred at all, testified she knows it occurred despite
sleeping through it because her underwear was inside out
and demonstrated she does not understand the meaning of
penetration.
B. The Commonwealth failed to present sufficient evidence
to support the trial court’s holding that Appellant should be
classified as a sexually violent predator.
C. The Commonwealth failed to present sufficient evidence
to support a conviction for the offense of unlawful restraint
of a minor in accordance with 18 Pa.C.S.A. § 2902(c)(1)
by failing to offer any evidence that Appellant placed
[Child] in actual danger of a substantial risk of death or
serious bodily injury.
D. The trial court erred by denying Appellant’s motion for
mistrial due to the attorney for the Commonwealth’s
statements during opening remarks revealing inadmissible
evidence to the jury which in turn deprived Appellant of a
fair trial by preventing the jury from weighing and
rendering a true verdict.
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E. The trial court erred in permitting the Commonwealth to
admit [Child’s] prior recorded interview as substantive
evidence in accordance with 42 Pa.C.S.A. § 5985.1.
Appellant’s Brief at 5.
First, Appellant contends that:
the Commonwealth failed to present sufficient evidence to
support a conviction for the offenses of rape, statutory
sexual assault, aggravated indecent assault and incest
when the Commonwealth’s sole witness failed to offer
consistent testimony regarding what occurred, when it
occurred, how many times it occurred, whether it actually
occurred at all, testified she knows it occurred despite
sleeping through it because her underwear was inside out
and demonstrated she does not understand the meaning of
penetration.
* * *
The inconsistencies within [Child’s] trial testimony and
her previous testimony are too numerous to detail in full
without a reading of the entire record. However, there are
key points necessary to support a conviction that simply
were not present in the Commonwealth’s case due to
[Child’s] inconsistent and therefore, unreliable
testimony.
Id. at 11-12.
Our review of a sufficiency of the evidence is governed by the following
principles:
[O]ur scope of review is plenary. Our standard of review is
de novo. Scope of review refers to the confines within
which an appellate court must conduct its examination. . .
. In other words, it refers to the matters (or what) the
appellate court is allowed to examine. In contrast,
standard of review refers to the manner in which (or ‘how’)
that examination is conducted. A standard of review is the
degree of deference given by the reviewing court to the
decision under review. In other words, it is the power of
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the lens through which the appellate court looks at the
issue in a particular case.
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict. [A]ll of the evidence and any
inferences drawn therefrom must be viewed in the light
most favorable to the Commonwealth as the verdict
winner.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007)
(quotation marks and citations omitted).
As a prefatory matter, we consider whether Appellant has waived this
sufficiency of the evidence claim. The issue presented in Appellant’s Rule
1925(b) statement is as follows: “The evidence presented at trial by the
Commonwealth was insufficient to support a conviction on Count One, Rape,
Count Two, Statutory Sexual Assault and Count Three, Aggravated Indecent
Assault.” Appellant’s Pa.R.A.P. 1925(b) Statement, 3/16/16, at 1.
[W]hen challenging the sufficiency of the evidence
on appeal, the [a]ppellant’s 1925 statement must
“specify the element or elements upon which the
evidence was insufficient” in order to preserve the
issue for appeal. Such specificity is of particular
importance in cases where, as here, the [a]ppellant
was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt. Here, [the
a]ppellant . . . failed to specify which elements he
was challenging in his 1925 statement . . . . While
the trial court did address the topic of sufficiency in
its opinion, we have held that this is “of no moment
to our analysis because we apply Pa.R.A.P.1925(b) in
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a predictable, uniform fashion, not in a selective
manner dependent on an appellee’s argument or a
trial court’s choice to address an unpreserved claim.”
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
2009) [ ].
Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (some
citations omitted).
Analogously, in the instant case, Appellant’s 1925(b) statement fails to
“specify the element or elements upon which the evidence was insufficient”
and failed to specify which convictions he was challenging. See id. Thus,
we could find the issue is waived. See id. We decline to find waiver on this
basis.
We consider whether Appellant raises a sufficiency of the evidence
claim but argues the weight of the evidence. Appellant contends that Child’s
testimony was inconsistent and unreliable. Appellant’s Brief at 12. In
Commonwealth v. DeJesus, 860 A.2d 102 (Pa. 2004), our Pennsylvania
Supreme Court opined:
The [a]ppellant’s claim challenges the weight, not the
sufficiency, of the evidence. The weight of the evidence is
exclusively for the finder of fact, which is free to believe
all, part, or none of the evidence, and to assess the
credibility of the witnesses. Questions concerning
inconsistent testimony . . . go to the credibility of the
witnesses. This Court cannot substitute its judgment for
that of the jury on issues of credibility.
* * *
As we will not disturb the jury's credibility determinations,
this claim fails.
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Id. at 107 (citations omitted and emphasis added). Analogously, Appellant’s
claim challenges the weight of the evidence.12 See id. We cannot
substitute our judgment for that of the jury. See id. This claim fails. See
id.
Next, Appellant avers that the Commonwealth failed to present
sufficient evidence to support the trial court’s holding that Appellant should
be classified as a sexually violent predator (“SVP”). He contends that “the
report issued by psychologist C. Townsend Velkoff and the testimony offered
by the Commonwealth prior to sentencing on January 13, 2016[,] reveals
the Commonwealth failed to meet their burden in several respects.”
Appellant’s Brief at 17. Appellant argues that Velkoff “failed to adequately
consider the best evidence available to establish the nature and
circumstances of the offense” pursuant to 42 Pa.C.S. § 9795.4. Id. at 18.
He claims Velkoff’s testimony ignored the statutory criteria for establishing a
mental abnormality. Id. Velkoff “ignored the definition of predator set forth
in 42 Pa.C.S.A. § 9792.” Id. at 19.
A challenge to a determination of SVP status requires us to
view the evidence
in the light most favorable to the Commonwealth.
The reviewing court may not weigh the evidence or
substitute its judgment for that of the trial court.
12
We note that Appellant did not raise the issue of the weight of the
evidence to support a conviction for rape, statutory sexual assault or
aggravated indecent assault in his Rule 1925(b) statement.
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The clear and convincing standard requires evidence
that is so clear, direct, weighty and convincing as to
enable [the trier of fact] to come to a clear
conviction, without hesitancy, of the truth of the
precise facts [at] issue.
The scope of review is plenary. [A]n expert’s opinion,
which is rendered to a reasonable degree of professional
certainty, is itself evidence.
A challenge to the sufficiency of the evidence to support
an SVP designation requires the reviewing court to accept
the undiminished record of the case in the light most
favorable to the Commonwealth. The reviewing court
must examine all of the Commonwealth’s evidence without
consideration of its admissibility. A successful sufficiency
challenge can lead to an outright grant of relief such as a
reversal of the SVP designation, whereas a challenge to
the admissibility of the expert’s opinion and testimony is
an evidentiary question which, if successful, can lead to a
new SVP hearing.
Commonwealth v. Prendes, 97 A.3d 337, 355-56 (Pa. Super.) (citations
and quotation marks omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
The basis for a determination that an individual is a SVP is statutory. Id. at
357.
Therefore, the salient statutory inquiry for SVP
designation:
[I]s identification of the impetus behind the
commission of the offense; that is, whether it
proceeds from a mental defect/personality disorder
or another motivating factor. The answer to that
question determines, at least theoretically, the
extent to which the offender is likely to reoffend, and
[S]ection [9799.24] provides the criteria by which
such likelihood may be gauged.
To deem an individual a sexually violent predator, the
Commonwealth must first show [the individual] has been
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convicted of a sexually violent offense as set forth in
[section 9799.14]. . . . See also 42 Pa.C.S.A. §
[13]
9799.12. Secondly, the Commonwealth must show that
the individual has a mental abnormality[14] or personality
disorder that makes [him] likely to engage in predatory
sexually violent offenses. When the Commonwealth meets
this burden, the trial court then makes the final
determination on the defendant’s status as an SVP.
Id. at 357-58 (quotation marks and some citations omitted).
Section 9799.24 provides:
(b) Assessment.─Upon receipt from the court of an order
for an assessment, a member of the board as designated
by the administrative officer of the board shall conduct an
assessment of the individual to determine if the individual
should be classified as a sexually violent predator. The
board shall establish standards for evaluations and for
evaluators conducting the assessments. An assessment
shall include, but not be limited to, an examination of the
following:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means
necessary to achieve the offense.
13
An SVP is defined as a person “who, on or after the effective date of this
subchapter, is determined to be a sexually violent predator under section
9799.24 (relating to assessments) due to a mental abnormality or
personality disorder that makes the individual likely to engage in predatory
sexually violent offenses.” 42 Pa.C.S. § 9799.12.
14
Mental abnormality is defined as a “congenital or acquired condition of a
person that affects the emotional or volitional capacity of the person in a
manner that predisposes that person to the commission of criminal sexual
acts to a degree that makes the person a menace to the health and safety of
other persons.” 42 Pa.C.S. § 9799.12.
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(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of
unusual cruelty by the individual during the
commission of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual's prior criminal record.
(ii) Whether the individual completed any prior
sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age.
(ii) Use of illegal drugs.
(iii) Any mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual's conduct.
(4) Factors that are supported in a sexual offender
assessment field as criteria reasonably related to the
risk of reoffense.
42 Pa.C.S. § 9799.24.
In Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super. 2010), this
Court opined:
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[W]ith regard to the various assessment factors
listed in Section 9795.4,[15] there is no statutory
requirement that all of them or any particular
number of them be present or absent in order
to support an SVP designation. The factors are
not a check list with each one weighing in some
necessary fashion for or against SVP designation.
Rather, the presence or absence of one or more
factors might simply suggest the presence or
absence of one or more particular types of mental
abnormalities.
Thus, while the Board is to examine all the factors
listed under Section 9795.4, the Commonwealth
does not have to show that any certain factor is
present or absent in a particular case. Rather, the
question for the SVP court is whether the
Commonwealth’s evidence, including the Board’s
assessment, shows that the person convicted of a
sexually violent offense has a mental abnormality or
disorder making that person likely to engage in
predatory sexually violent offenses. Having
conducted a hearing and considered the evidence
presented to it, the court then decides whether a
defendant is to be designated an SVP and thus made
subject to the registration requirements of 42
Pa.C.S.A. § 9795.1(b)(3).
Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa.
Super. 2008) (citations omitted). In discussing the
absence of certain statutory factors and discussing the
facts of other cases, [the a]ppellant is essentially asking
this Court to reweigh them. This we cannot do. See
generally, Commonwealth v. Meals, [ ] 912 A.2d 213([Pa.] 2006) (holding that this Court erred in reweighing
the SVP evidence presented to the trial court; “the
Superior Court stepped beyond its authority when it
reweighed the evidence, giving more weight to the ‘absent’
15
We note that 42 Pa.C.S. § 9795.1 and § 9795.4 expired on December 20,
2012. See 42 Pa.C.S. § 9799.41. Section 9799.24 is virtually identical to
Section 9795.4.
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factors than those found and relied upon by the trial
court”).
Id. at 863 (some citations omitted and emphasis added).
C. Townsend Velkoff, a licensed psychologist, testified at the hearing
on January 13, 2016, as to the following. He:
was provided with material from the assessment board
investigator that included the Pennsylvania state police
incident report and investigative report, the criminal
charges and complaint, the affidavit of probable cause, the
Lycoming County Child Protective Services record, the
Childline report.[16] It included a protection from abuse
order, and it also included information about [Appellant’s]
prior offense from New York State. There was an incident
report of that from New York State.
R.R. at 68a. In making a SVP assessment, he considered whether Appellant
“display[ed] a personality disorder, a mental abnormality disorder and also
whether he has displayed predatory behavior.” Id. at 69a. He indicated
there are fourteen factors that are considered. Id.
[I]f an individual has offended a child or has a pattern of
offending behavior related to prepubescent children, that’s
significant with regard to risk for re-offense because the
literature is very clear that individuals who display sexual
interest in children have a much higher risk of re-offense
than those that do not have that interest.
16
The Childline report is referred to by Trooper Tyson Havens of the
Pennsylvania State Police. He testified that he had very little information
when he interviewed Appellant on August 19, 2014. The information he had
“was on the fax from Children & Youth which was basically what the aunt
had told the Childline or Children & Youth caller when─I think it’s [Mother’s]
aunt made the initial call.” R.R. at 51a.
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Id. He testified that Appellant molested his prepubescent seven-year-old17
daughter. Id. The age of the child is related “in a very significant way” to
mental abnormality. Id.
[W]ith regard to finding mental abnormality [he]
considered whether [Appellant met] any diagnostic criteria
from the Diagnostic and Statistical Manual of Mental
Disorders that would document whether he displays or
meets diagnostic criteria for one of the paraphilias. And in
this case, because he was molesting his daughter for well
more than six months, he met diagnostic criteria for
pedophilic disorder which support the conclusion that he
has a mental abnormality.
* * *
[Appellant] does display pedophilic disorder and the
mental abnormality aspect of the definition of sexually
violent predator, it’s assumed then that [he] displays a
lifetime condition and that this condition overrode his
emotional and volitional control, thus resulting in the
offending behavior.
* * *
There was evidence of predatory behavior as described in
the file material with respect to him waiting until his wife
was out of the home before initiating this behavior with his
daughter . . . .
Id. at 69a-70a.
Appellant had prior criminal offenses, both sexual and non-sexual. Id.
at 69a. He had driving offenses and he was charged with forceable
17
We note that the docket indicates the date of the offense was July 1,
2013. Child testified she was six years old when she told her mom what had
happened. R.R. at 130a. Child testified on October 19, 2015 that she was
eight years old. R.R. at 7a.
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touching in New York for fondling his sister-in-law. Id. His overall
professional opinion was that Appellant met the criteria to be classified as an
SVP. Id. at 70a. This opinion was rendered within a reasonable degree of
professional certainty. Id.
Appellant was not using illegal substances. Velkoff considered this fact
in the assessment.
[T]he fact that he wasn’t using illegal substances during
the commission of these offenses would mean that he’s
acting from a sober state. In other words, it can’t be
argued that he was acting impulsively because he was
impaired. Instead he was acting impulsively because of
some erotic urge. So in terms of my assessment of him
based on the file material, I would see the lack of use of
illegal substances as slightly more risky.
Id. at 75a.
The trial court opined:
As far as the finding that [Appellant] is a sexually
violent predator, such was based on evidence offered by
the Commonwealth at a hearing on January 13, 2016,
specifically the expert opinion of [Velkoff] who was
qualified by the court as an expert in this area. Of special
significance to Mr. Velkoff’s opinion were the facts that the
victim was seven years old, which supported his conclusion
that there was a high risk of re-offense, and that the
offenses took place over a period of more than six months,
which supported a finding of pedophilic disorder, a mental
abnormality. He also considered that [Appellant] had a
prior conviction involving a sexual offense, and that he
displayed predatory and manipulative behavior.
Trial Ct. Op., 3/17/16, at 4-5.
Velcoff considered whether Appellant displayed a personality disorder,
a mental abnormality disorder, and also whether he displayed predatory
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behavior. See Prendes, 97 A.3d at 357-58. He opined that Appellant had
a high risk of re-offense. See id. He considered the statutory factors. See
42 Pa.C.S. §§ 9799.12, 24; Brooks, 7 A.3d at 863. Velcoff concluded that
Appellant met the criteria to be classified as an SVP. See 42 Pa.C.S. §
9799.24; Brooks, 7 A.3d at 863. Viewing the evidence in the light most
favorable to the Commonwealth, we find the evidence was sufficient to
support Appellant’s SVP designation. See Prendes, 97 A.3d at 355-56.
Third, Appellant contends “the Commonwealth failed to present
sufficient evidence to support a conviction for the offense of unlawful
restraint of a minor in accordance with 18 Pa.C.S.A. § 2902(c)(1) by failing
to offer any evidence that Appellant placed [Child] in actual danger of a
substantial risk of death or serious bodily injury.” Appellant’s Brief at 20.
As noted above, the standard of review for a challenge to the
sufficiency of the evidence is de novo. Ratsamy, 934 A.2d at 1235.
Section 2902(c)(1) of the Crimes Code provides:
(c) Unlawful restraint of minor where offender is
victim's parent.─If the victim is a person under 18 years
of age, a parent of the victim commits a felony of the
second degree if he knowingly:
(1) restrains another unlawfully in circumstances
exposing him to risk of serious bodily injury[.]
18 Pa.C.S. § 2902(c)(1). Serious bodily injury is defined as “[b]odily injury
which creates a substantial risk of death or which causes serious, permanent
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disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301.18
The trial court opined:
The Commonwealth argues that the evidence that
[Appellant’s] body weight on top of [Child’s] body during
the intercourse caused [Child] to not be able to breathe
and thus exposed her to the risk of suffocation, was
sufficient to support the charge. The court agrees. [Child]
testified that “I couldn’t scream or anything like that when
he was on top of me because he was so heavy, and he was
going like this on my mouth. And I could barely breathe,”
and that [Appellant] “would get on top of me and do this,
like cover my nose so I can’t scream or breathe or
anything, then I pass out, and when he did this a little bit
later I wake up from him doing this.” She also stated in an
interview, a videotape of which was shown to the jury, that
she couldn’t breathe because her father was hurting her,
and she couldn’t scream because she couldn’t breathe.
The evidence that [Appellant’s] restraint of [Child] with his
body weight and by covering her mouth caused her to pass
out is clearly sufficient to support a finding that there was
an “actual danger of harm.”
Trial Ct. Op., 2/22/16, at 2 (citations and footnote omitted).
Appellant exposed Child to the risk of suffocation that creates a
substantial risk of death or serious bodily injury. See 18 Pa.C.S. §
2902(c)(1). We find the evidence was sufficient to support a conviction for
unlawful restraint of a minor. See 18 Pa.C.S. § 2902(c)(1); Ratsamy, 934
A.2d at 1235.
18
We note that Appellant cites 18 Pa.C.S. § 2602 for the definition of serious
bodily injury. Chapter 26 refers to “Crimes Against Unborn Child.”
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In his fourth issue, Appellant claims the trial court erred in denying his
motion for a mistrial due to the Commonwealth’s statement during the
opening argument that revealed inadmissible evidence to the jury, viz., that
Child’s mother got a protection from abuse act (“PFA”) order against
Appellant. Appellant’s Brief at 22. Appellant contends that this reference to
the PFA “strongly suggests the jurors would conclude a prior court or even a
prior jury had already determined Appellant committed these offenses.” Id.
at 23.
Our standard of review of a trial court’s refusal to grant a request for a
mistrial is well established:
The decision to declare a mistrial is within the sound
discretion of the court and will not be reversed
absent a flagrant abuse of discretion. A mistrial is
an extreme remedy . . . [that] . . . must be granted
only when an incident is of such a nature that its
unavoidable effect is to deprive defendant of a fair
trial. A trial court may remove taint caused by
improper testimony through curative
instructions. Courts must consider all surrounding
circumstances before finding that curative
instructions were insufficient and the extreme
remedy of a mistrial is required. The circumstances
which the court must consider include whether the
improper remark was intentionally elicited by the
Commonwealth, whether the answer was responsive
to the question posed, whether the Commonwealth
exploited the reference, and whether the curative
instruction was appropriate.
Commonwealth v. Bracey, 831 A.2d 678, 682-83 (Pa. Super. 2003)
(emphasis added and quotation marks and citations omitted).
During opening remarks to the jury, the Commonwealth stated:
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Finally, [Child will] tell you that when she had had
enough, because it was really bothering her, she went to
her mom . . . . She went to her mother while her mother
was cooking breakfast, and she said I don’t want daddy
sleeping with me anymore. Why not? Because daddy is
touching me. You’ll hear that [Mother] immediately threw
[Appellant] out of the house. You’ll hear that she got a
PFA. [Appellant] eventually was arrested.
Now, you’re going to see the interview with Trooper
Havens of when [Appellant] was arrested; and you’re
going to hear he doesn’t exactly come out and admit what
happened because he can’t bring himself to say what he
did to his daughter. You’re not going to hear the words I
did such and such from him.
But you’re going to have to listen to the words carefully,
and you will realize the words he does say exactly convey
that message. Not only those words, but the words that
he said to Children & Youth worker Elizabeth Spagnuolo
when she called him on the phone to talk to him about the
allegations, the words that he said to Sheriff’s Deputy
Brian Rockwell when he served the PFA to [Appellant], and
the words and notes that he left behind for the children
after he moved out and they came back to the home that
were found by her mother.
Now, more importantly, during the trial today you’re
going to hear the words of [Child], the eight-year-old little
girl. You’re going to hear her testimony today, and you’re
also going to see her testimony from when she was
interviewed by a forensic interviewer at the Children’s
Advocacy Center in Northumberland County right after this
happened.
And keep in mind, ladies and gentlemen, this is an
eight-year-old testifying. She may not say things in the
terms that you and I would because obviously we’re using
adult terms. I’m just asking you to carefully listen to her,
as you will all witnesses; and in the end you will be
convinced beyond a reasonable doubt that [Appellant] is
guilty. And I’ll be coming back and asking you to render
that verdict. Thank you.
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R.R. at 3a.
The court held an on-the-record sidebar discussion, out of the
presence of the jury. Defense counsel objected to the Commonwealth’s
mention of the PFA and asked for a mistrial. Id. The court denied the
request and stated it would give a curative instruction. Id. The court gave
the following instruction:
Ladies and gentlemen, during her opening statement
[the Commonwealth] mentioned to you that there was a
PFA. A PFA is what they call a Protection From Abuse Act.
It is a civil proceeding and perhaps has nothing to do with
this case directly, and no negative inferences can be taken
against [Appellant] as a result of the PFA. And you are
instructed that you are to give that no weight other than
the fact that it was one of the things in the succession of
events that occurred with respect to the actions of
[Appellant’s] wife.
R.R. at 4a.
Child’s mother testified at trial and the Commonwealth did not
reference the PFA. The Commonwealth asked Mother what she did after
Child made “a complaint concerning what this trial is about[.]” R.R. at 29a.
[The Commonwealth]: And what did you do when she
came to you and told you that?
A: I went and confronted [Appellant].
* * *
I went and confronted him about it, and he tried to deny it
at first.
Q: Well, what did you say?
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A: I asked him what he had been doing to our daughter.
And then he said that he inappropriately touched her, but
it wouldn’t happen again. I told him to get out, that he
was supposed to be her father, not doing those things to
her. He was supposed to be protecting her.
Q: Now, subsequently you would have─you would have left
the house with the children?
A: I did.
Q: And at some point did you come back when he was no
longer staying there?
A: I did.
R.R. at 29a-30a.
The trial court opined:
As it turns out, the Commonwealth did not subsequently
introduce any evidence of the PFA, but elicited from
[Child’s] mother only that she “told him to get out” and
that she left the house with the children and returned only
after [Appellant] was no longer staying there. Thus, in
light of the court’s prior instruction to the jury that the
statements and arguments of counsel are not evidence,
the court believes the jury did not consider the matter at
all, let alone give it undue weight. The statement was
insignificant in the context of a consideration of all of the
evidence, and clearly did not deprive [Appellant] of a fair
trial.
Trial Ct. Op., 2/22/16, at 6-7 (footnote and citation omitted).
The trial court gave a curative instruction to the jury that removed any
possible taint by the prosecutor’s reference to the PFA. See Bracey, 831
A.2d at 682-83. We discern no abuse of discretion by the trial court in
denying the motion for a mistrial. See id.- 34 -
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Lastly, Appellant contends “the trial court erred in permitting the
Commonwealth to admit [Child’s] prior recorded interview as substantive
evidence in accordance with 42 Pa.C.S.A. § 5985.1.” Appellant’s Brief at 24.
Appellant avers that “[t]he statements in question, and [Child’s] statements
in general, do not possess consistency in repetition and further suggest the
mental state of the declarant is that of someone who is incapable of
understanding the truth.” Id. at 26.
On October 14, 2015, the trial court granted the Commonwealth’s
motion to admit the recorded interview. The trial court opined:
Here [Child] testified at trial and thus the only issue
presented by the motion was whether there were sufficient
indicia of reliability. . . .
The interview was conducted by Sherry Moroz in a room
at the Children’s Advocacy Center and was videotaped,
although it appears that [Child] was unaware that she was
being taped. Ms. Moroz usually asked rather general
questions like, “is someone worried that something has
happened with you?”, “What kinds of things happened?”,
“do you remember what happened?”, and “tell me about
that”. And when she did ask a more specific question,
such as (in response to [Child] stating “he was touching
me”), “who was touching you?”, she never suggested an
answer. While the statements were not spontaneous in
the sense of being blurted out for no apparent reason, they
were given in response to such vague prompts that the
court finds spontaneity sufficient to support reliability.
[Child] was consistent in repetition. . . . While she
stated at other times, in court hearing, that more things
happened than she talked about in the interview, at that
interview she told Ms. Moroz that she knew other things
had happened but could not remember what they were.
Her statement was thus consistent with even other
statements given subsequently.
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[Child’s] mental state during the interview was calm;
her demeanor was very matter-of-fact and she was not
emotional. While she expressed hesitation to say certain
things out loud or at all, preferring to write them down
(the word “sex” and two “swear words”), this did not seem
to upset her. She described other events (which have
been described by others and thus provide a basis to
conclude they are accurate) with clarity and accuracy and
thus indicated that her mental state was clear and
unaffected.
[Child] used terms expected to be used by children her
age, such as “ladybug” and “manbug” rather than correct
anatomical terms. This suggests that she was describing
the events in her own words and that she had not been
coached.
Finally, there was no evidence of any motive to
fabricate.
Therefore, the court believes it correctly admitted the
interview as substantive evidence under section 5985.1,
and [Appellant] is not entitled to a new trial on that basis.
Trial Ct. Op., 2/22/16, at 8-9.
Our review is governed by the following principles:
An appellate court’s standard of review of a trial court’s
evidentiary rulings, including rulings on the admission of
hearsay and determinations of witness competency, is
abuse of discretion. However, issues of statutory
interpretation are questions of law, over which our
standard of review is de novo and our scope of review is
plenary.
Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. Super. 2014) (citations
omitted).19
19
We note that the Pennsylvania Supreme Court in Walter
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Section 5985.1 provides:
(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:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
Consider[ed] whether the Superior Court erred in holding
the trial court was required to determine that the child
victim was competent to testify under Pa.R.E. 601 prior to
admitting her out-of-court statements into evidence
pursuant to the Tender Years Hearsay Act (“TYHA”), 42
Pa.C.S.A. § 5985.1. We hold that a determination of a
child’s competency pursuant to Rule 601 is not a
prerequisite to the admission of hearsay statements under
the TYHA, and, therefore, we reverse the decision of the
Superior Court and remand for further proceedings.
Id. at 444-45. We note that in the case sub juice there was a competency
hearing. See R.R. at 205a-224a.
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42 Pa.C.S. § 5985.1(a)(1)-(2)(i-ii).
The Walter Court opined:
the TYHA concerns the admissibility of out-of-court
statements made by a child victim or witness to third
parties. The admissibility of this type of hearsay is
determined by assessing the particularized guarantees of
trustworthiness surrounding the circumstances under
which the statements were uttered to the person who is
testifying. To determine whether a child’s out-of-court
statements are admissible under the TYHA,
a trial court must assess the relevancy of the
statements and their reliability in accordance with
the test enunciated in Idaho v. Wright, [497 U.S.
805 (1990)]. Although the test is not exclusive, the
most obvious factors to be considered include
the spontaneity of the statements, consistency
in repetition, the mental state of the declarant,
use of terms unexpected in children of that age
and the lack of a motive to fabricate.
Walter, 93 A.3d at 451 (quotation marks and some citations omitted and
emphasis added). “The tender years statute creates an exception to the
hearsay rule in recognition of the fragile nature of young victims of sexual
abuse.” Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super. 2006)
(quotation marks and citation omitted).
In the case sub judice, Child testified at trial. Therefore, as the trial
court found, the only issue was whether the Walter test was satisfied. The
record substantiates the trial court’s findings of sufficient spontaneity, Child
was consistent in repetition, her mental state was calm, Child used terms
expected of children her age, and there was no evidence of a motive to
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fabricate. We discern no abuse of discretion or error of law. See Walter,
93 A.3d at 449; Curley, 910 A.2d at 697.
For all of the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2016
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