Com. v. Fisher, C. ( 2017 )

J-A29035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CARL FISHER, :
:
Appellant : No. 419 WDA 2016
Appeal from the Judgment of Sentence November 20, 2015
in the Court of Common Pleas of Somerset County,
Criminal Division, No(s): CP-56-CR-0000800-2012
BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 20, 2017
Carl Fisher (“Fisher”) appeals from the judgment of sentence imposed
after a jury convicted him of two counts each of criminal solicitation
(involuntary deviate sexual intercourse (“IDSI”) and indecent assault,
respectively) and criminal attempt (IDSI and indecent assault, respectively),
and one count of corruption of minors.1 We affirm.
The trial court exhaustively set forth in its Opinion the factual and
procedural history underlying this appeal, which we adopt as though fully set
forth herein. See Trial Court Opinion, 5/26/16, at 1-16.
In this timely appeal, Fisher presents the following issues for our
review:
I. Whether the lower court committed an error when it allowed
the case to proceed on the Amended Information filed by
the District Attorney[,] without prior leave of court[,] in
1
See 18 Pa.C.S.A. §§ 902(a), 3123(a)(7), 3126(a)(8), 901(a),
6301(a)(1)(ii).
J-A29035-16
violation of Pennsylvania Rule[s] of Criminal Procedure 560
and 564, despite [Fisher’s] objections[?]
II. Whether the lower court committed an error by allowing the
case to proceed despite [Fisher’s] objections and arguments
that he was denied his right[] to a speedy trial[,] in violation
of Pennsylvania Rule of Criminal Procedure 600[?]
III. Whether the lower court committed an error by refusing to
allow [Fisher] to cross-examine regarding the victim’s
reluctance to testify[?]
IV. Whether the lower court committed an error in allowing the
victim’s written statement to be presented to the jury[?]
V. Whether the lower court committed an error by denying
[Fisher’s] Motion in limine, and by denying objections at trial
[concerning the introduction] and admission of an e-mail
exchange between [Fisher] and a co-worker[?]
VI. Whether the lower court committed an abuse of discretion
when it considered the Sexual Offender Assessment Board
([“]SOAB[”]) report as a factor in imposing sentence,
especially when there had been no hearing to determine
whether [Fisher] was found to be a sexually violent
predator[,] and whe[re] the report contained almost nothing
but hearsay[?]
VII. Whether the verdict is against the sufficiency of the
evidence[?]
VIII. Whether the verdict is against the weight of the evidence[?]
Brief for Appellant at 4-5 (capitalization omitted, issues renumbered for ease
of disposition).
Fisher first argues that the trial court erred when it denied his two
pretrial Motions to Quash the Commonwealth’s Amended Information. See
id. at 21-28. According to Fisher, the Amended Information was “technically
-2-
J-A29035-16
defective,” and the four additional charges raised against Fisher therein
should have therefore been dismissed, for two reasons:
1) the District Attorney’s Office did not specifically obtain court
approval prior to the amendment[,] in violation of Pa.R.Crim.P.
564;[2] and, 2) even if the Amended Information were not void
on its face, the Information and Amended Information do not
contain specific factual allegations[,] nor does the Amended
Information cite specific statute sections, thus rendering it in
violation of Pa.R.Crim.P. 560.[3]
Brief for Appellant at 21, 23 (footnotes added). Concerning Rule 564, Fisher
argues as follows:
The language of Rule 564 specifically requires, as a prerequisite
to amending an information, court approval by the language “the
court may allow[.]” [Pa.R.Crim.P. 564.] Thus, the trial court
becomes the gatekeeper, and prior to any amendment of an
information, the Commonwealth must ask the court for the
requisite permission. Failure to do so is fatal to that amended
information.
2
Rule 564 provides, in relevant part, as follows: “The court may allow an
information to be amended when there is a defect in form, the description of
the offense(s), the description of any person or any property, or the date
charged, provided the information as amended does not charge an additional
or different offense.” Pa.R.Crim.P. 564.
3
Rule 560, which governs the filing and contents of a criminal information,
provides that an information should contain, inter alia, “a plain and concise
statement of the essential elements of the offense substantially the same as
or cognate to the offense alleged in the complaint[.]” Pa.R.Crim.P.
560(B)(5); see also Commonwealth v. Sims, 919 A.2d 931, 939 (Pa.
2007) (stating that “[t]o comport with due process, the notice provided must
be sufficiently specific so as to allow the defendant to prepare any available
defenses should he exercise his right to a trial.”). Rule 560 further provides
that “[t]he information shall contain the official or customary citation of the
statute and section thereof, or other provision of law that the defendant is
alleged therein to have violated; but the omission of or error in such citation
shall not affect the validity or sufficiency of the information.” Pa.R.Crim.P.
560(C).
-3-
J-A29035-16
Brief for Appellant at 22; but see id. at 23 (wherein Fisher concedes that
“there is no case law regarding an explanation of the Rule’s explicit language
that the court must approve the amendment.”). Concerning Rule 560,
Fisher avers that the Amended Information violated subsections (B)(5) and
(C), and is void as being “substantively defective,” because “[i]n all four
counts [charged therein (i.e., two counts each of criminal attempt and
solicitation,], there is only a description of the inchoate offense and the
statutory name to the substantive offense. There are also no references to
any specific subsection of the substantive crime.” Id. at 28.
We will first address Fisher’s claim as it pertains to Rule 564. This
Court has explained that
[t]he purpose of [] [R]ule [564] is to ensure that a defendant is
fully apprised of the charges, and to avoid prejudice by
prohibiting the last minute addition of alleged criminal acts of
which the defendant is uninformed. When a challenge is raised
to an amended information, the salient inquiry is
[w]hether the crimes specified in the original
information involve the same basic elements and
evolved out of the same factual situation as the crimes
specified in the amended information. If so, then the
defendant is deemed to have been placed on notice
regarding his alleged criminal conduct. If, however, the
amended provision alleges a different set of events, or
defenses to the amended crime are materially different
from the elements or defenses to the crime originally
charged, such that the defendant would be prejudiced
by the change, then the amendment is not permitted.
-4-
J-A29035-16
Commonwealth v. Samuel, 102 A.3d 1001, 1008-09 (Pa. Super. 2014)
(citation, quotation marks, and ellipses omitted); see also Commonwealth
v. Sinclair, 897 A.2d 1218, 1220-21 (Pa. Super. 2006) (same).
To the extent that Fisher’s issue requires us to interpret the language
of Rule 564, we are mindful of the following: “When construing a Rule of
Criminal Procedure, we utilize the Statutory Construction Act when possible.
Pa.R.Crim.P. 101(C). The object of any rule interpretation ‘is to ascertain
and effectuate the intention of’ this Court. 1 Pa.C.S.A. § 1921(a).”
Commonwealth v. Sepulveda, 144 A.3d 1270, 1279 n.18 (Pa. 2016).
“The object of all interpretation is to ascertain and effectuate the intent of
the drafters, a task that is best accomplished by considering the plain
language of the provision(s) at issue.” Commonwealth v. Far, 46 A.3d
709, 711 (Pa. 2012).
Further, in interpreting a particular statute [or Rule], we must
remain always mindful of the principle that, although one is
admonished to listen attentively to what a statute [or Rule]
says[,] one must also listen attentively to what it does not say.
Accordingly, it is not for the courts to add, by interpretation, to a
statute [or Rule], a requirement which the [drafters] did not see
fit to include.
Commonwealth v. Gehris, 54 A.3d 862, 864-65 (Pa. 2012) (citations and
quotation marks omitted).
Contrary to Fisher’s claim, the Commonwealth was not mandated by
Rule 564 to seek and obtain court approval before filing the Amended
Information; the plain language of Rule 564 imposes no such mandatory
-5-
J-A29035-16
duty. Though the Rule provides that a “court may allow an information to be
amended …,” Pa.R.Crim.P. 564 (emphasis added), we disagree with Fisher’s
interpretation that this language means that the Commonwealth must
receive express permission from a trial court to amend a criminal
information.4 We are precluded from adding into the Rule a requirement
that the drafters did not see fit to include. See Gehris, supra. Moreover,
the Commonwealth’s filing of the Amended Information did not constitute an
improper “last-minute” addition of charges, violative of the purpose of Rule
564. See Samuel, supra. Rather, the Commonwealth filed the Amended
Information in April 2013, and the case did not proceed to trial until over
two years later, thus giving Fisher ample notice and time to mount a defense
against the charges. Finally, we agree with the trial court that
[t]he crimes specified in the original [I]nformation involve the
same basic elements[,] and evolved out of the same factual
situation[,] as the crimes specified in the [A]mended
[I]nformation. [Fisher] is [thus] deemed to have been placed on
notice regarding his alleged criminal conduct and therefore[,
Fisher] is not prejudiced by this change.
Trial Court Opinion, 5/26/16, at 17 (citing Sinclair, supra); see also
Samuel, supra.
We also discern no violation of Rule 560. Importantly, Fisher concedes
that the Rule explicitly provides that “the omission of or error in such
citation[, i.e., to the statute it is alleged that the defendant violated,] shall
4
Additionally, Fisher points us to no case law in support of his argument in
this regard, nor does our independent research disclose any.
-6-
J-A29035-16
not affect the validity or sufficiency of the information.” Pa.R.Crim.P. 560(C)
(emphasis added); see also Commonwealth v. Morales, 669 A.2d 1003,
1006 (Pa. Super. 1996) (stating that “pursuant to Pennsylvania law, an
information is not to be read in an overly technical form. Thus, we will
arrest judgment only when an error misleads a defendant as to the charges
against him, precludes him from anticipating the Commonwealth’s proof, or
impairs a substantial right.”). Additionally, the content of the Amended
Information was sufficiently “specific so as to allow [Fisher] to prepare any
available defenses should he exercise his right to a trial.” Sims, 919 A.2d at
939; see also Pa.R.Crim.P. 560(B)(5). Accordingly, Fisher’s first issue does
not entitle him to relief.
In his second issue, Fisher contends that the trial court erred by
denying his Motion to dismiss, asserting that the Commonwealth violated his
speedy trial rights under Pa.R.Crim.P. 600. See Brief for Appellant at 29-41.
Fisher summarizes his claim as follows:
Essentially, … the delay [in bringing his case to trial] began after
several of Fisher’s [M]otions were not promptly scheduled for a
hearing as a result of the Commonwealth’s lack of due diligence.
[] [A]s a result, the time should be attributed to the
Commonwealth, which [results in a] violation of Pa.R.Crim.P.
600 ….
Id. at 33; see also id. (listing Fisher’s five pretrial Motions that allegedly
“were not decided or scheduled in a timely fashion”); id. at 34-35 (asserting
that there were delays in scheduling a hearing on Fisher’s discovery
requests, which should be attributable to the Commonwealth); id. at 40
-7-
J-A29035-16
(asserting that “the Commonwealth did not demonstrate that it ‘exercised
due diligence by opposing or responding to the pretrial motion[s].’” (quoting
Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999))).
We review such claims according to the following principles:
In evaluating Rule 600 issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
...
The proper scope of review is limited to the evidence on the
record of the Rule 600 evidentiary hearing, and the findings of
the trial court. An appellate court must view the facts in the
light most favorable to the prevailing party.
Additionally, when considering the trial court’s ruling, this Court
is not permitted to ignore the dual purpose behind Rule 600.
Rule 600 serves two equally important functions: (1) the
protection of the accused’s speedy trial rights, and (2) the
protection of society. In determining whether an accused’s right
to a speedy trial has been violated, consideration must be given
to society’s right to effective prosecution of criminal cases, both
to restrain those guilty of crime and to deter those
contemplating it. However, the administrative mandate of Rule
600 was not designed to insulate the criminally accused from
good faith prosecution delayed through no fault of the
Commonwealth.
Commonwealth v. Thompson, 93 A.3d 478, 486-87 (Pa. Super. 2014)
(citations, brackets and ellipses omitted).
In its Opinion, the trial court summarized and addressed Fisher’s
claims concerning his Rule 600 challenge, discussed the relevant law, and
determined that the Commonwealth had exercised due diligence in bringing
Fisher’s case to trial. See Trial Court Opinion, 5/26/16, at 18-21. We affirm
based on the trial court’s rationale with regard to this issue. See id.-8-
J-A29035-16
In his third issue, Fisher argues that the trial court committed an error
of law, which caused him unfair prejudice at trial, by precluding defense
counsel from cross-examining the victim’s mother (and, likewise, the victim)
regarding the victim’s having allegedly expressed to the prosecutor prior to
trial a reluctance to testify (hereinafter referred to as “the purported
reluctance comments”). See Brief for Appellant at 42-51. Fisher urges that
the trial court erred as a matter of law in determining that the purported
reluctance comments were privileged communications protected from
inquiry. Id. at 45-46. According to Fisher, this topic was relevant and
material, and defense counsel should have been permitted to cross-examine
the victim and his mother on this matter to impeach the victim’s credibility.
See id. at 46-50. Fisher avers that the court’s ruling in this regard “allowed
the jury not to weigh favorable evidence [to the defense], which certainly
would have been useful in the determination of the credibility of [the
victim].” Id. at 49 (emphasis omitted); see also id. at 50 (asserting that
cross-examination concerning the victim’s reluctance to testify was
particularly necessary “especially in light of the alleged discrepancy of the
[June 30, 2012] conversation where words were allegedly uttered by Fisher
to [the victim].”).
“[T]he scope of cross examination is a matter within the trial court’s
discretion and will not be disturbed absent an abuse of that discretion.”
Commonwealth v. Kouma, 53 A.3d 760, 768 (Pa. Super. 2012) (citation
-9-
J-A29035-16
omitted); see also Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super.
2012) (stating that “in reviewing a challenge to the admissibility of evidence,
we will only reverse a ruling by the trial court upon a showing that it abused
its discretion or committed an error of law. … To constitute reversible error,
an evidentiary ruling must not only be erroneous, but also harmful or
prejudicial to the complaining party.” (citation omitted)).
In its Opinion, the trial court addressed Fisher’s claim and determined
that the court did not err in precluding cross-examination into the purported
reluctance comments. See Trial Court Opinion, 5/26/16, at 37-41.5 We
agree with the trial court’s rationale and determination, and affirm on this
basis as to Fisher’s third issue, see id., with the following addendum.
Initially, our research has disclosed no on-point case law guidance on
this particular matter. Reluctance by minor victims to testify against their
assailants in a criminal trial is not uncommon, particularly in cases involving
alleged sexual crimes. See, e.g., Commonwealth v. Baldwin, 502 A.2d
253, 258 (Pa. Super. 1985) (observing that “child sexual abuse victims often
… are reluctant witnesses, sometimes refusing to testify or recanting prior
allegations out of fear or coercion.”) (collecting cases and persuasive
authority). We are persuaded by the rationale advanced in the trial court’s
Opinion that it would be against public policy to permit inquiry into the
5
We observe that wherein the trial court sets forth the relevant portions of
the transcript, “Mr. Policicchio” is Fisher’s counsel, and “Mr. Carbonara” is
the prosecutor.
- 10 -
J-A29035-16
purported reluctance comments where the victim made these comments to
the prosecutor prior to trial. See id. at 41.
Nevertheless, even assuming, arguendo, that the trial court erred by
prohibiting defense cross-examination concerning the purported reluctance
comments, an error at trial does not automatically entitle an appellant to a
new trial. Commonwealth v. Reese, 31 A.3d 708, 719 (Pa. Super. 2011)
(en banc). “The harmless error doctrine, as adopted in Pennsylvania,
reflects the reality that the accused is entitled to a fair trial, not a perfect
trial. … Harmless error exists[, in relevant part,] if the record demonstrates
[that] … the error did not prejudice the defendant or the prejudice was de
minimis ….” Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014)
(citations and quotation marks omitted).
Even if Fisher was prejudiced by being prohibited from questioning the
victim’s mother as to whether the victim had previously expressed hesitation
to testify against his neighbor in a criminal trial, such prejudice was de
minimis. See id. This is particularly true where the victim, in fact, chose to
testify at trial (which calls into question the relevance of the victim’s prior
alleged reluctance). Moreover, we determine that even if the trial court had
permitted cross-examination into the purported reluctance comments, there
is no reasonable possibility that this would have resulted in a different
verdict. See Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa.
2003) (stating that “[a]n error will be deemed harmless where the appellate
- 11 -
J-A29035-16
court concludes beyond a reasonable doubt that the error could not have
contributed to the verdict. If there is a reasonable possibility that the error
may have contributed to the verdict, it is not harmless.”). Accordingly, we
conclude that Fisher’s third issue lacks merit.
In his fourth issue, Fisher avers that the trial court erred when it
permitted the jury to take into deliberations a handwritten police statement
given by the victim on July 3, 2012 (hereinafter “the police statement”).
See Brief for Appellant at 51-56.6 Fisher argues that
the entire case against [him] was based on the testimony of [the
victim]. And, the exact words which Fisher is alleged to have
used to “solicit” [the victim] are the key to demonstrate the
elements of the offenses with which Fisher was charged. …
[U]nder the circumstances where there is vigorous debate as to
a discrepancy in the testimony, … it is unduly suggestive to the
jury to readily accept the version of the testimony offered by a
victim when the jury is allowed to read the victim’s actual
statement.
Id. at 53. Fisher concedes that “the publication to the jury of the [police]
statement … is not specifically prohibited by Pa.R.Crim.[P.] 646(C),[7]
allowing the publication of the statement to the jury to fall within the
6
We note that Fisher does not challenge the admissibility of the victim’s
written police statement. See, e.g., Brief for Appellant at 52 (asserting that
“[t]he problem becomes allowing the jury to actually have a written
statement of the witness.”); see also Trial Court Opinion, 5/26/16, at 42
(stating that “[Fisher] did not object at trial, nor in his Motion for New Trial,
to [the police] statement being marked [as an exhibit] and used at trial …[;
r]ather, [Fisher] takes issue with the statement having been provided to the
jury.”).
7
Rule 646 provides, in relevant part, that “[u]pon retiring, the jury may
take with it such exhibits as the trial judge deems proper, except as
provided in paragraph (C).” Pa.R.Crim.P. 646(A).
- 12 -
J-A29035-16
discretion of the trial judge.” Brief for Appellant at 64 (footnote added).
Notwithstanding, Fisher argues that the trial court’s ruling was an abuse of
discretion. Id.
“Whether an exhibit should be allowed to go out with the jury during
its deliberation is within the sound discretion of the trial judge.”
Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012); see also
Pa.R.Crim.P. 646(A). “An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law, the
exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill will or partiality, as shown by the evidence of record.”
Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa. Super. 2014). “The
underlying reason for excluding certain items from the jury’s deliberations is
to prevent placing undue emphasis or credibility on the material, and de-
emphasizing or discrediting other items not in the room with the jury.”
Barnett, 50 A.3d at 194 (citation omitted). “Our courts have rarely found
that materials given to juries during deliberations constitute reversible error.
In the cases that have found reversible error, however, the prejudicial effect
of the evidence in question was severe and readily apparent.” Id.
(collecting cases).
In the instant case, we do not deem the prejudicial effect (if any) of
the police statement to be severe. As defense counsel and the prosecutor
pointed out during trial, the police statement contained certain accounts
- 13 -
J-A29035-16
made by the victim of the events on June 30, 2012, which were both
consistent and inconsistent with the victim’s testimony at the preliminary
hearing and trial. See Trial Court Opinion, 5/26/16, at 44-46 (setting forth
the relevant portions of the trial transcript); see also id. at 47 (wherein the
trial court found that defense counsel had attempted to impeach the victim
through cross-examination concerning “small inconsistent statements”
between the victim’s testimony and the police statement). Accordingly, the
jury’s having possessed the police statement did not give it access to
information favorable only to the Commonwealth. Moreover, we cannot
agree with Fisher that publication of the police statement placed undue
emphasis or credibility on the material contained therein. See Barnett, 50
A.3d at 194. Therefore, we conclude that the trial court acted within its
discretion, pursuant to Rule 646(A), when it denied Fisher’s challenge to the
jury possessing the police statement during deliberations. See id.; see
also Commonwealth v. Causey, 833 A.2d 165, 178 (Pa. Super. 2003)
(stating that under Rule 646 “a prosecution witness’s statement entered into
trial evidence as an exhibit may be sent out to the jury.”).
In his fifth issue, Fisher argues that “the trial court erred in denying
his Motion in Limine to preclude the admission of an email exchange
between [Fisher] and his co-worker[,] because the[] [emails] were irrelevant
and highly and unfairly prejudicial.” Brief for Appellant at 56. The email
- 14 -
J-A29035-16
exchange, admitted into evidence at trial, provided, in relevant part, as
follows:
[Fisher’s male co-worker]: Did you mow your lawn, the
cheerleader, or the redhead that you said you were going to get
pics for me to make john jealous?
[Fisher]: Yeah. I no longer discuss the down-hill neighbors.
Mother’s insanity appears to have been passed along in the
genes. Taking pictures of [the victim in the instant case] would
probably result in police cars swarming my place. Besides, the
red hair is the only good feature, he’s rather odd looking. I’m
seriously considering a fence and video surveillance, so screen
shots in the future might be possible.
Commonwealth’s Trial Exhibit A (hereinafter referred to as “the email”); see
also N.T., 8/26/15, at 1.176-77. Fisher asserts that the email was
inadmissible under Pennsylvania Rule of Evidence 403, which provides that
“[t]he [trial] court may exclude relevant evidence if its probative value is
outweighed by a danger of … unfair prejudice ….” Pa.R.E. 403; see also
Brief for Appellant at 58-59 (arguing that the email was unfairly prejudicial
because “1) it implies that [Fisher] was photographing [the victim]; 2) it
implies that [Fisher] found [the victim’s] red hair attractive; 3) it implies
[that Fisher] looked at [the victim] to evaluate his attractiveness …; [and] 4)
it implies that [Fisher] has improper voyeuristic tendencies by noting that he
(Fisher) may video[]tape [the victim].”).
“A trial court’s decision to … deny a motion in limine is generally
subject to an evidentiary abuse of discretion standard of review.”
Commonwealth v. Williams, 91 A.3d 240, 248 (Pa. Super. 2014) (en
- 15 -
J-A29035-16
banc). “Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015); see also
Pa.R.E. 402. “Evidence is relevant if it has any tendency to make a fact
more or less probable than it would be without the evidence[,] and the fact
is of consequence in determining the action.” Pa.R.E. 401; see also Tyson,
119 A.3d at 358 (stating that “[e]vidence is relevant if it logically tends to
establish a material fact in the case, tends to make a fact at issue more or
less probable or supports a reasonable inference or presumption regarding a
material fact.”). Although a trial court may exclude relevant evidence if its
probative value is outweighed by a danger of unfair prejudice,
[e]vidence will not be prohibited merely because it is harmful to
the defendant. [E]xclusion is limited to evidence so prejudicial
that it would inflame the jury to make a decision based on
something other than the legal propositions relevant to the case
…. This Court has stated that it is not required to sanitize the
trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at
hand[.]
Kouma, 53 A.3d at 770 (citation omitted); see also Pa.R.E. 403, cmt.
(defining “unfair prejudice” as “a tendency to suggest a decision on an
improper basis or to divert the jury’s attention away from its duty of
weighing the evidence impartially.”).
Here, the trial court opined that the email is “clearly relevant” and
probative of whether Fisher had propositioned the victim for unlawful sexual
contact. See Trial Court Opinion, 5/26/16, at 34. In particular, the trial
court stated that
- 16 -
J-A29035-16
[t]he issue in this case was whether [Fisher] propositioned [the
victim] for oral sex and made comments to the effect that he
found [the victim’s] red hair attractive. The email established
that [Fisher] had made statements about photographing [the
victim], and that he found [the victim’s] red hair to be a ‘good
feature.’ [Fisher’s] statements make it more probable that
[Fisher] found [the victim] attractive, and therefore more likely
to have propositioned [the victim].
Id. The trial court further found that “the email’s relevance was not
outweighed by unfair prejudice.” Id. Moreover, the trial court stated that it
“found the jury was capable of determining the extent to which the email
corroborated [the victim’s] claims, and that the jury was competent to
ascertain whether [Fisher’s] statements [in the email] were jokes, in
earnest, or somewhere in between.” Id. We agree with the trial court’s
determinations concerning the admissibility of the email and, discerning no
abuse of discretion, conclude that the trial court did not abuse its discretion
by denying Fisher’s Motion in limine. See Williams, supra.In his sixth issue, Fisher contends that the trial court abused its
discretion by considering improper information in imposing his sentence,
including hearsay evidence. Brief for Appellant at 60.
Fisher challenges the discretionary aspects of his sentence, from which
there is no automatic right to appeal. See Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
- 17 -
J-A29035-16
We conduct a four-part analysis to determine: (1) whether the
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether the appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Fisher filed a timely Notice of Appeal and preserved the
challenge to his sentence in a post-sentence Motion. Fisher also included
the requisite Rule 2119(f) Statement in his brief. Accordingly, we will review
Fisher’s Rule 2119(f) Statement to determine whether he has raised a
substantial question.
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation
omitted); see also 42 Pa.C.S.A. § 9781(b).
In his Rule 2119(f) Statement, Fisher argues, in relevant part, as
follows:
[T]he trial court committed an abuse of discretion when it
considered the [SOAB] Report as a factor in imposing sentence
despite the fact that Fisher had never been declared by the court
to be a sexually violent predator and, [where] Fisher [had] not
participat[ed] in the interview leading to the report[,] the [SOAB
- 18 -
J-A29035-16
R]eport contained almost nothing but hearsay concerning his
background.
Brief for Appellant at 60.
Fisher’s claim presents a substantial question. See Commonwealth
v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006) (stating that a
substantial question is presented where the appellant alleges that the
sentencing court relied upon impermissible factors in fashioning a sentence).
We review discretionary aspects of sentence claims under the following
standard: “[S]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion.” Commonwealth v. Fullin, 892 A.2d 843,
847 (Pa. Super. 2006).
In its Opinion, the trial court addressed Fisher’s challenge to his
sentence, adeptly summarized the applicable law, and determined that the
sentencing court did not abuse its discretion by considering the information
contained in the SOAB Report. See Trial Court Opinion, 5/26/16, at 51-55.
The trial court’s cogent analysis is supported by the law and the record, and
we discern no abuse of discretion by the court in sentencing Fisher within
the standard range of the sentencing guidelines. We, therefore, affirm on
this basis in rejecting Fisher’s sixth issue. See id.In his seventh issue, Fisher challenges the sufficiency of the evidence
supporting his convictions. See Brief for Appellant at 11-18.
- 19 -
J-A29035-16
As a prefatory matter, we consider whether Fisher has waived his
sufficiency of the evidence claim. Fisher presented this issue in his court-
ordered Rule 1925(b) Concise Statement as follows: “[Fisher] asserts as
error that the verdict is against both the weight and sufficiency of the
evidence.” Concise Statement, 4/15/16, at ¶ 10. In its Opinion, the trial
court determined that Fisher had waived the sufficiency claim for his lack of
specificity in the Concise Statement. See Trial Court Opinion, 5/26/16, at
56-57.
This Court has observed that
when 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.
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (internal
citations and quotation marks omitted).
In the instant case, Fisher’s Concise Statement fails to specify the
element or elements upon which the evidence was insufficient, and failed to
specify which convictions he was challenging. Accordingly, Fisher waived
this issue. See id.; Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.
Super. 2013) (ruling that the appellant had waived his sufficiency challenge
where he “not only failed to specify which elements he was challenging in his
Rule 1925(b) statement, [but] also failed to specify which conviction he was
- 20 -
J-A29035-16
challenging.”); see also Commonwealth v. Veon, 109 A.3d 754, 775 (Pa.
Super. 2015) (vacated on other grounds) (citing Garland, supra, and
finding the appellant’s sufficiency challenge waived where he raised this
claim as follows in his “sweeping and generalized” Rule 1925(b) statement:
“[t]he evidence was insufficient to prove beyond a reasonable doubt that Mr.
Veon committed any crime whatsoever.”).
In his final issue, Fisher argues that the jury’s verdict was against the
weight of the evidence, asserting that “the evidence which was heard by the
jury shows that the version testified to by Fisher was so clearly of much
greater weight than was that presented by [the victim].” Brief for Appellant
at 19. Fisher urges that the verdict “shocks the conscience, as there is
absolutely no evidence … of any specific conduct or action by Fisher against
[the victim], other than idle talk and random conversation.” Id.In reviewing Fisher’s claim, we are cognizant that
[t]he weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. 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.
On appeal, our purview is extremely limited and is confined to
whether the trial court abused its discretion in finding that the
jury verdict did not shock its conscience. Thus, appellate review
of a weight claim consists of a review of the trial court’s exercise
of discretion, not a review of the underlying question of whether
the verdict is against the weight of the evidence.
- 21 -
J-A29035-16
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(quotation marks and citations omitted); see also Commonwealth v.
Sanchez, 36 A.3d 24, 27 (Pa. 2011) (stating that “[o]n appeal, [an
appellate] Court cannot substitute its judgment for that of the jury on issues
of credibility, or that of the trial judge respecting weight.”).
In its Opinion, the trial court addressed Fisher’s claim and determined
that the verdict was not against the weight of the evidence. See Trial Court
Opinion, 5/26/16, at 55-56. We discern no abuse of discretion in the trial
court’s determination, nor does the jury’s verdict shock our collective
conscience. Accordingly, we affirm with regard to Fisher’s final issue based
on the rationale in the trial court’s Opinion. See id.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2017
- 22 -
Circulated 12/21/2016 10:51 AM
(~
) IN THE COURT OF COMMON PLEAS
) OF SOMERSET COUNTY,
) PENNSYLVANIA
)
)
)
Defendant. ) NO. 800 CRIMINAL 2012
OPINION PURSUANT TO Pa.R.A.P.1925(a)
This opinion is issued in compliance with Pennsylvania Rule of Appellate Procedure
1925(a).
I. PROCEDURAL HISTORY
On July 2,2012, Conemaugh Township Police received a report from the mother of a
juvenile complainant that Carl 1. Fisher ("Defendant") had offered the juvenile ("ZS") money
in exchange for oral sex, an offer that ZS had refused. The next day, ZS provided a written
statement to police containing these allegations. About three and one-half months later, on
October 25, 2012, Detective Michael H. Popma filed a criminal complaint charging
Defendant with: Promoting Prostitution of a Minor (18 Pa. Cons. Stat. § 5902(b.l)(3»;
Criminal Solicitation (to promote prostitution of a minor) (18 Pa. Cons. Stat. § 902(a»; and
Corruption of Minors (18 Pa. Cons. Stat. § 6301(a)(ii». On December 5, 2012, a preliminary
hearing took place before Magisterial District Judge Susan Mankamyer, who dismissed the §
5902(b.l)(3) charge, but held the §§ 902(a) and 6301 (a)(1)(ii) charges for court. On January
18, 2013, the Somerset County District Attorney filed a Criminal Information charging
Defendant with offenses under §§ 902(a) and 6301(a)(1)(ii).
It would be another two and one-half years before this case would finally make it to
trial on August 26,2015. On the way, the case followed this tortmed path:
.,,-/~. / / j I
• February 12, 2013: Defense counsel, Matthew R. Zatko, Esq., requested, and was
granted, a continuance because he needed additional time to prepare for trial.
• April 16, 2013: The District Attorney filed an amended Criminal Information in which
were added charges of: Criminal Solicitation (Involuntary Deviate Sexual Int.) (18 Pa.
Cons. Stat. § 902(a)); Criminal Attempt (Involuntary Deviate Sexual Intercourse) (18
Pa. Cons. Stat. § 901(a)); Criminal Solicitation (Indecent Assault) (18 Pa. Cons. Stat.
§ 902(a)); and Criminal Attempt (Indecent Assault) (18 Pa. Cons. Stat. § 901(a)).
• April 16, 2013: Defendant pleaded not guilty to all charges.
• April 23, 2013: Defendant, acting pro se, filed a Petition for Writ of Habeas Corpus.
• April 24, 2013: We issued an order on continuing the case, since we had been advised
that further pre-trial motions were to be filed, and we would be taking these matters
under advisement.
• April 25, 2013: Attorney Zatko filed a Motion to Quash Information for Failure to
Comply with Pa.R.Crim. P. 544, 564 and 565.
• July 7, 2013: Defendant, acting pro se, filed a Motion for Sanctions Against the
Commonwealth and to Dismiss All Charges.
• july 22, 2013: Attorney Zatko moved to withdraw as counsel for Defendant based on
Defendant having filed pro se pleadings, on Defendant having made "allegations and
accusations ... [via] emails to [Attorney Zatko], causing the attorney-client relationship
to be irreparably damaged," and because Defendant failed to cooperate with counsel.
• July 25, 2013: We granted Attorney Zatko's Motion to Withdraw. We scheduled a
hearing on the remaining matters for August 27, 2013.
• August 27, 2013: Defendant requested a postponement in order to obtain counsel; we
2
granted this request and postponed the hearing to September 10,2013.
• September 6,2013: Attorney Joseph Policicchio entered his appearance for Defendant.
• September 9, 2013: Defendant again moved to continue the case on the grounds:
"Counsel was engaged in this matter on September 6, 2013. Due to the complex
nature of the case, counsel requires additional time to prepare for [the] same." We
granted the request and postponed the hearing for October 30, 2013.
• September 9, 2013: Defendant also signed a Pa.R.Crim.P. 600 waiver and requested a
postponement of the case from the October Criminal Court Term to the next term.
• September 12,2013: We granted Defendant's request for postponement.
• October 30, 2013: We heard argument on Defendant's Motions for Sanctions, to
Quash the Amended Information, and for Writ of Habeas Corpus. On that date, we
denied the Motion for Sanctions, and took the remaining issues under advisement.
• November 20,2013: We denied the Defendant's remaining motions.
• December 5-6, 2013: Defendant signed another Rule 600 waiver and requested a
continuance of the case from the January criminal trial session to the March term,
which we granted on December 6.
• December 16, 2013: Defendant filed an application asking us to amend our Order
denying his Habeas motion so as to grant him permission to seek an interlocutory
appeal.
• December 19, 2013: We denied the Defendant's application to amend.
• February 11, 2014: Defendant indicated that a discovery request had gone unresolved,
so we scheduled argument on Defendant's Motion for Discovery for February 27.
• February 27, 2014: We granted a continuance and directed the parties to meet and
3
attempt to resolve the issues raised in Defendant's motion within thirty days.
• April 15, 2014: Defendant again pleaded not guilty.
• April 23, 2014: Defendant moved for dismissal pursuant to Rule 600. We indicated
that we would continue the trial, upon Defendant's filing of a Rule 600 waiver, in
order to resolve Defendant's Motion to Dismiss. Defendant requested the continuance
and submitted a Rule 600 waiver on May 5, 2014, on which date we allowed the case
to be postponed to the next criminal trial term.
• September 24,2014: We heard argument regarding Defendant's Rule 600 motion and
took the matter under advisement, which required postponement of the case to the next
criminal trial term.
• December 9, 2014: We again continued the case because Defendant's motion was still
under advisement.
• December 19, 2014: We directed the parties to complete time-line calculations and
submit them to us by January 16,2015. Both parties complied on January 16,2015.
• February 10, 2015: Because the Rule 600 matter was still under advisement, we
continued the case until the next term of court.
• March 17,2015: We denied Defendant's Rule 600 motion.
• March 27,2015: Defendant filed a Motion for Reconsideration.
• April 9, 2015: Defendant, acting pro se, filed a Motion to Disqualify the Somerset
County District Attorney's Office from Participation in this Prosecution.
• April 10, 2015: Defendant, acting pro se, filed a Motion to Quash Amended
Information for Violating Pa.R.Crim.P. 560(B)(5). On that date, April 10, 2015, we
denied the Motion for Reconsideration, and the presiding judge at the time, then-
4
President Judge Cascio, recused himself from the case.
• April 15, 2015: We advised defense counsel by letter that we would not be considering
Defendant's pro se motions because represented criminal defendants have no right to
file pro se pleadings.
• May 20, 2015: Defense counsel subsequently "adopted and joined" in Defendant's
two pro se motions. Defendant, through counsel, filed an Omnibus Pre-Trial Motion,
apparently incorporating Defendant's prior pro se motions and raising new issues. We
scheduled hearing on Defendant's Omnibus Motion for June 9, 2015.
• May 28-29, 2015: Defendant requested a continuance because defense counsel had
"already been scheduled to be out of Somerset County for another hearing" on June 9,
2015. We granted the continuance on May 29 and rescheduled the hearing for June
17,2015.
• June 17, 2015: The parties jointly moved to continue the hearing on this date because
of their inability to secure the presence of necessary witnesses. The hearing was
rescheduled for June 30, 2015.
• June 23, 2015: Defendant, acting pro se, filed an Objection to Transcript alleging
certain errors in the transcript of the proceedings that occurred on February 11,2014.
• June 25, 2015: We scheduled this case for trial to occur on August 26 and 27, 2015.
• June 30, 2015: We held a hearing on Defendant's Omnibus Pre-Trial Motion, and took
the matter under advisement.
• July 21, 2015: We issued our decision on Defendant's Omnibus Pre-Trial Motion.
• August 21, 2015: Defendant filed a Motion in Limine, which we denied on August 26,
2015.
5
The case proceeded to jury trial on August 26,2015. Defendant was found guilty on
all counts on August 27, 2015. Sentencing was scheduled for November 12, 2015. On
September 16, 2015, we ordered that Defendant be assessed by the Sexual Offenders
Assessment Board.
On October 27, 2015, Defendant filed a Motion for New Trial, and defense counsel
concurrently filed a Motion to Withdraw. On November 5, 2015, we heard argument on the
Motion for New Trial and took the matter under advisement. On that date, we also continued
argument regarding defense counsel's Motion to Withdraw to November 10, 2015. On
November 9,2015, we denied Defendant's Motion for New Trial and rescheduled sentencing
for November 19, 2015. On November 10, 2015, we granted defense counsel's Motion to
Withdraw upon completion of the sentencing hearing.
On November 18, 2015, Defendant moved for Assignment of Legal Counsel, which
we denied. On November 19, 2015, prior to sentencing, Defendant made an oral Motion for
Extraordinary Relief, which as we noted, was in the nature of a Motion for Judgment of
Acquittal due to insufficiency of the evidence. We denied the oral motion and proceeded to
sentencing. For the offense of Solicitation to Commit IDSI, we sentenced Defendant to four
to eight years' incarceration in a state correctional institution; for the offense of Corruption of
Minors, Defendant was sentenced to six months to seven years incarceration to be served
concurrently with the Solicitation sentence; 1 and the offenses of Criminal Attempt to Commit
IDSI, Solicitation to Commit IDSI, and Criminal Attempt to Commit Indecent Assault
merged for sentencing purposes.
On that date, we also granted Defendant additional time to file post-sentence motions.
1 We originally sentenced Defendant to six months to eight years, but we realized our error at the sentencing
hearing, and issued an Amended Sentencing Order on that same date.
6
On November 23, 2015, we ordered the Public Defender's Office to assign counsel to
Defendant. Defendant filed his post-sentence motion on December 8, 2015, which we denied
on February 29,2016. Defendant had also demanded new court-appointed counsel, which we
denied on the same date.
Defendant's Notice of Appeal was filed on March 29,2016. We ordered Defendant to
file a 1925(b) statement on March 24, with which Defendant complied on April 15, 2016.
II. FACTUAL HISTORY
Defendant is a fifty-six year old single man whose place of residence was 181 North
Red Drive, Johnstown, Pennsylvania. Trial Tr. 2.220-21, Aug. 27, 2015. He was employed
as a Financial Conditions Examiner with the Pennsylvania Insurance Department, and had
been so employed since 2005. Id. at 2.221-22. Prior to that he had been an auditor with the
Defense Department, but had also held odd-jobs such as delivering pizzas and working at
Idlewild Park. Id. at 2.222.
ZS resided at 183 North Red Drive, Johnstown, Pennsylvania, 15905 which was
situated next door to Defendant's home. Trial Tr. 1.107-08, Aug. 26, 2015. ZS made
Defendant's acquaintance years prior when ZS had taken a trip to the amusement park
Idlewild, where Defendant worked. Id. at 1.108. This may have been as far back as 2004. Id.
at 1.135. After that, ZS had other interactions with Defendant; for example, whenever ZS and
others would ride their bicycles outside, Defendant "would always be there pumping tires up
and stuff like that, doing yard work." Id. at 1.109; Trial Tr. 2.252-53, Aug. 27, 2015.
Beginning around the age of twelve, ZS would also perform yard work for Defendant, such as
raking leaves and shoveling snow. Trial Tr. 1.110, 1.111, Aug. 26, 2015. Other children in
the neighborhood also performed services for Defendant including ZS' sister. Id. at 1.110-12.
7
Defendant paid ZS for doing chores around the residence. Id. at 1.111.
After a year or two of performing tasks such as raking leaves, ZS began mowing
Defendant's lawn. Id. at 1.112. Defendant would pay ZS forty dollars for two or three hours'
worth of raking leaves. Id. at 1.113. ZS would receive the same wage for mowing the lawn.
Id. ZS considered these sums to be generous. Id.
ZS recalled that around this time, he had observed Defendant engaging in behavior ZS
believed to be odd, e.g., while playing hockey in his yard outside, ZS observed Defendant
watching him from a vantage point in Defendant's laundry room. Id. at 1.114. During some
of these occasions, ZS would make eye contact with Defendant, which indicated to ZS that
Defendant knew ZS had seen Defendant watching him. Id.
Defendant was generally friendly to ZS, and they had never argued. Id. at 1.116.
However, ZS testified that his mother had laid down ground rules vis-i-vis Defendant: never
go inside of his house, and never go over to Defendant's residence when ZS' mother was not
home. Id. at 1.115. Still, ZS' mother apparently let ZS perform yard work, and she allowed
ZS to approach Defendant about purchasing fundraiser items. Id. And whenever ZS or his
sister would ask Defendant about purchasing such items, Defendant would give them larger
bills and allow them to keep the change; for example, an item might cost seven dollars, and
Defendant would give them a ten-dollar bill and allow them to keep the change. Id. at 1.134-
35; Trial Tr. 2.240-41, Aug. 27, 2015. In 2010, Defendant gave ZS and his sister Christmas
gifts of fifty dollars each. Trial Tr. 1.136, Aug. 26, 2015; Trial Tr. 2.258-59, Aug. 27, 2015.
Defendant also gave Christmas gifts to other children in the neighborhood. Trial Tr. 1.137-
38, Aug. 26, 2015. Defendant once encountered ZS and his family at a restaurant, Old Toll
Gate Inn, and paid for their meal. Id. at 1.133-34; Trial Tr. 2.243-45, Aug. 27, 2015.
8
ZS had approached Defendant about mowing Defendant's lawn in order for ZS to earn
money to spend during an upcoming family trip to Florida. Trial Tr. 1.141, Aug. 26, 2015.
ZS mowed Defendant's lawn thrice prior to the trip. Id. at 1.141-42.
ZS recounted the events of June 30, 2012:
June 30th, I went over to Carl's and knocked on his door
because we were going on vacation to Florida and I wanted to
ask him when I should mow before we left. And he's like:
Whenever, I'll be home all week. I go, Okay.
I was getting ready to leave and Carl asked me if he could ask
me a question, if I wanted to ... earn more money; I said, Sure.
And he said he had a friend about my age before and they
would give each other blow jobs. And he wanted to know if we
could do that and he also told me he liked red hair. [ ... ] He told
me: If so, just to name the price. [... ]
I said no and ran off his porch .. .into my house ... [w]ent inside,
slammed the door behind me and went to my room.
Id. at 1.116-17. This occurred around three in the afternoon. Id. at 1.119. ZS was fourteen
years old at the time. Id. at 1.117. Defendant did not pull his wallet out, show ZS any money,
advance on ZS, touch, or attempt to touch, ZS. Id. at 1.160.
Although ZS' mother was home at the time, ZS did not immediately tell her about
these events. Id. at 1.118. He decided not to tell her then because he did not feel comfortable
disclosing that this had happened. !d. at 1.119. After he went to his room, ZS played video
games and watched television; he could not recall whether he ate supper with his mother and
sister. Id.
ZS later went to bed: "It was around 3:00 [a.m.]. And I'm laying in bed just thinking
[about] what Carl said to me. I felt uncomfortable knowing that I had to live beside him, and
so I went back to my mom's room crying and told her what had happened, that we had to talk,
and told her what he said to me." Id. at 1.120. Afterward, his mother "tried to get me to calm
9
down and everything, went back, woke my sister up, told her what was going on; and we kind
of sat up for a little bit after that; and we went to bed; and then in the morning, she tried
figuring out like what to do ... about everything." Id. at 1.121.
ZS remembers his mother making calls the next day as she attempted to figure out
how to proceed. Id. at 1.122. The Monday after this incident, ZS was interviewed by
Detective Popma, and ZS communicated these events to the detective and also prepared a
written statement. Id.
After charges were filed against Defendant, ZS observed Defendant ordering food at
the McDonald's ZS worked at, and Defendant would make eye contact with ZS which made
ZS feel a palpable sense of tension. Id. at 1.124-25. ZS also believed Defendant was
following him on a separate occasion. Id. at. 1.125.
Since the incident, ZS had given "the finger" to Defendant multiple times. Id. at
1.13 0-31. ZS would make this gesture to Defendant when ZS was on his porch and he saw
Defendant "in his house[,] staring out the window." Id. at 1.131. ZS also directed his middle
finger at Defendant because Defendant had placed a camera on top of the air conditioner
connected to his window, which was oriented toward ZS' house. Id. at 1.167.
Brad Harker is an attorney employed by the Human Resources Department of
Defendant's former employer, the Pennsylvania Insurance Department ("the Department").
Id. at 1.174. When the Department was notified of the charges pending against Defendant, it
followed its policy of immediately suspending employees and investigating them. Id. at
1.175. The Department's staff confiscated Defendant's laptop and requested that the Office
of Administration provide "a capture of all of his e-mail and the Internet [sic] activities." Id.
at 1.175-76. Once suspended, Defendant filed for unemployment compensation. An
10
unemployment compensation hearing was held, at which point, Mr. Harker had the
opportunity to question Defendant under oath. Id. at 1.176.
One of the e-mails the Department recovered was sent between Defendant and one of
his co-workers the morning of August 13,2012:
[Co-worker]: Did you mow your lawn, the cheerleader, or the
redhead that you said you were going to get pics for me to make
john [sic] jealous?
[Defendant]: Yeah. I no longer discuss the down-hill neighbors.
Mother's insanity appears to have been passed along in the
genes. Taking pics of Zachary would probably result in police
cars swarming my place. Besides, the red hair is his only good
feature, he's rather odd looking. I'm seriously considering a
fence and video surveillance, so screen shots in the future might
be possible. [ .... ]
Com.'s Ex. A, Aug. 26, 2015; Trial Tr. 1.177-78. At the unemployment compensation
hearing, Defendant admitted that he had authored this e-mail. TrialTr. at 1.181. Defendant
however explained the e-mail by indicating that it was a joke based on his knowledge that his
homosexual friend "liked redheads." Id. at 1.183. Defendant admitted at trial to writing this
e-mail. Trial Tr. 2.292, Aug. 27, 2015. His stated rationale remained the same: it was ajoke
to tease his friend's boyfriend. !d. at 2.295.
Defendant explained that he suffered an injury (a rupture of his "talar tendon") in late
2004, and in 2006 he began seeking help with his yard work from children in the
neighborhood because he had had surgery to "partially fix the talar tendon," which had put
him in "a cast for a week and a half, then an immobilizer ... Eventually, [it] could be adjusted
to allow more movement until it ... was functional." Id. at 2.232-34. From that point on, he
employed neighborhood children, up to the date of the incident, to perform various outdoor
tasks.
11
Defendant agreed that an exchange occurred between him and ZS on the date of the
incident, and their two accounts shared substantial points of agreement, but there was
disagreement as to the exact words Defendant spoke, and their context:
Q: [... ] So let's go back to what happened on June the 30th
then. [ZS] knocked. Did you come out on the porch?
A: Not immediately ... But then I stepped outside, went to a
neutral corner of the porch, leaned against the railing,
looked out on the lawn, saw a few drops of water, and I said
that he could probably mow today if he wanted ... he could
mow in maybe an hour or so, just let it dry a little bit more,
ifhe wanted ....
Q: All right, go ahead.
A: Um, and [ZS] responded much too quickly that he was
thinking he would want to mow on the third .. .I thought
maybe he was worried about getting paid, so I told him
before that...I wouldn't be traveling that first week of July.
So I assured him that whenever he wanted to do it before he
went on vacation is fine with me and I would be there to
pay.
Q: Did you think it was unusual that he wanted to come back
on the third as opposed to doing it Saturday, the 30th?
A: Yes. We had a pattern going; and since the job was going to
be over, he would mow on the 30th; and I would go back to
doing it myself on the seventh because he would be in
Florida and the job was done.
[ ... ]
Q: What conclusion did you come to?
A: Um, well, first, the conclusion that this was getting to be a
little weird conversation here because ... from my own
experience over the years, you don't set a specific day to
mow around here because that's the day when it's going to
be pouring down rain.
Q: He was dictating the days to you, the dates?
12
A: Yes, and I kind of took offense to that.
Q: [W]ere you getting the sense from him that not only did he
want to mow on the third, but he was planning on
coming ... back the following week?
A: Well, yes ... that's the conclusion that I came to eventually. I
really didn't come to that conclusion until I asked how long
he was going to be gone on vacation. But that wouldn't
work because he was going to be gone two weeks, but he
told me one week. And then the pieces fell together ... I put
it [all together] and I realized that I think I had been
snookered.
[ ... ]
Q: So what was your reaction? What did you do? What did
you say?
A: Well ... I figured I should probably express my displeasure in
some way to that attitude .. .I mean, he basically [was] taking
something that should have been in my control and actually
lied to me because he said he wanted to know when he
should mow. He didn't say: I've got this idea that I could
mow on this date and then we can work around vacation that
way. I might have .. .liked that idea, but ... I didn't like being
lied to. And I concluded that he was trying to cheat me out
of another $40.
Q: What happened then?
A: Urn, well, he kind of started to walk away and say he would
see me on the third; and I said, or anytime before you leave.
And I asked him to come back so I could ask him a
question. And I didn't want to falsely accuse him of
something, so I asked him: Is this about, urn, a way to make
more money?
[ ... ]
A: He said yeah. Urn, so I had a little dilemma there because
he was honest about trying to cheat me, I thought, but he
had tried to cheat me. So I-I told him that there had been
an incident-well, I gave a short version of this, but I got to
do the long one or you won't understand it.
13
Wh n I had moved in in 1994, a few months afterwards, a
poli e officer, who I believe lived up at the end of my
stre t ... named David Grattan-and I didn't know his name;
I ha researched it to get the-the name-David Grattan
had een arrested for sexual misconduct with mid-teenage
boy by ... letting them have beer parties, buying them
ettes, giving them some marijuana and propositioning
The news article said touching their legs
inap ropriately. The rumor mill actually told me it was
muc worse than that, but Grattan ... was fired. I actually
rem mbered that from back in 1994.
So asically I made the comment to Zachary that-you
, a long time ago, boys your age would go have a good
time and have oral sex for money. Urn-and I finished up
with a rhetorical question: Do you really want to be like
that.
[ ... ]
Q: [W] y ... was [it] that you made that comment or that
state ent?
A: WeI I, I wanted [ZS] to understand my displeasure with the
fact hat he had essentially lied to me about wanting to know
whe 1. .. wanted him to mow and then basically
disr garding my response about mowing that day; and
seco dIy, once I concluded that his reason was that he
wan ed to earn another $40 .. .1 just don't like that kind of
dishonesty and I considered it-urn, well, basically, a
situation where people will do anything for money-you
know, lie, cheat somebody; and especially since I've been
especially nice to them, especially nice, well, I guess four
weeks in even giving [ZS] that job.
[ ... ]
A: Okay, urn, but basically-you consider that good conduct,
bad conduct, morally equivalent-you know, that some
people would do anything for money would do and just
compare-comparing to that situation that I was starting to
describe-you know, where the boys would do anything for
money for that Officer Grattan.
Q: Now, Carl, were you intending on scaring [ZS] at all?
14
A: No, I don't think so. I think I-you know, just informing
him that some conduct is kind of unacceptable. And I'll be
honest, was it badly phrased? Yes. Could I have done
better with more time? Sure. But this was just spur of the
moment and he seemed anxious to leave, but I did want to
express my discontent with his actions.
Q: Did you use the word "blow jobs"?
A: I believe I used the phrase "oral sex."
Q: Did ... you say something to the effect: Name your price?
A: No.
Q: Did you in any manner solicit any kind of sexual favors for
money?
A: No. I had no such intent and I didn't.
Jd. at 2.270-82. Defendant denied that he said anything about liking redheads, and that no one
came to see him afterward to figure out whether there had been some kind of
misunderstanding. Jd. at 2.282-84. As Defendant stated,
What happened on June 30th? I think [ZS] truly believed at
first that I had said something inappropriate. I'm not going to
deny that it was poorly phrased, but-you know, after 12 hours
at 3:30 in the morning, I think he pieced together the comment
about liking redheads from a month before and his own
impressions I am sure he thought he heard from his mother over
the years and he came up with that and he genuinely scared
himself a little bit.
Jd. at 2.307. Later, however, Defendant asserted that Detective Popma "is quite a liar," that
ZS' mother "can't remember a lot of stuff very well," and that "[ZS] is a liar on some things."
Jd. at 2.316. Defendant alleged that ZS made inconsistent statements at the preliminary
Mr. Carbonara [the prosecuting attorney], C_ S_
hearing, statements ZS knew to be false, and he indicated that he wanted "to point out that
[the mother], and Michael Popma
were essentially [ZS'] handlers before the Preliminary Hearing; and most likely, people who
15
would suborn his perjury." Id. at 2.323. Defendant, based on his beliefs that the District
Attorney's Office and Detective Popma had engaged in misconduct, and, as Defendant stated,
"I believe that a crime had occurred and I am clearly the victim of it," Defendant filed
mUltiple private criminal complaints, which we discuss further infra.
III. ANALYSIS
1. Pre-trial Errors.
A. Denial of Defendant's Motion to Quash the Information and Second
Motion to Quash the Amended Information.
Defendant asserts that we erred "in denying [his] Motion to Quash the Information and
Second Motion to Quash the Amended Information[,] permitting the criminal charges on the
amended information to be put before the jury despite its amendment in violation of
Pa.R.Crim.P. 560 by being amended without leave of court and by the descriptions associated
with each charge lacking specific facts." Def.'s Statement of Matters Complained of Pursuant
to Rule 1925(b) ~ 4(a), Apr. 15,2016.
Defendant's Motion argued that,
Although the Pennsylvania Rules of Criminal Procedure are
silent as to a definition for "offense," Black's Law Dictionary
defines offense specifically as being, "A violation of the law; a
crime, often a minor one." Thus, under Rule 564 the amended
information cannot include a new crime, unless there was a
defect in form, description, or date charged.
Def.'s Mot. to Quash `` 9-12, April 25, 2013. Defendant argued that because "four new
crimes" were added to the Information, and there was no "defect in form of the original
information," no amendment was permitted. He also asserted that the procedure for amending
information, as contained in Pa.R.Crim.P. 565(a), was not followed. Id. at `` 13-14.
16
We denied Defendant's Motions to Quash, and stated our reasons, Vla Order on
November 20,2013:
Defendant's Motion to Quash Amended Information is
DENIED. The crimes specified in the original information
involve the same basic elements and evolved out of the same
factual situation as the crimes specified in the amended
information. Defendant is deemed to have been placed on
notice regarding his alleged criminal conduct and therefore
Defendant is not prejudiced by the change. See Commonwealth
v. Sinclair, 897 A.2d 1218 (Pa. Super. 2006) (citing
Commonwealth v. Davalos, 779 A.2d 1190, 1194 (Pa. Super.
2001».
Order, Nov. 20, 2013 (Geary, P.l.). Defendant filed a second Motion to Quash Amended
Information, this time pro se, on April 10, 2015, in which he alleged that no factual basis had
been given for the additional charges, and therefore, the District Attorney is not "complying
with ethics standards." We indicated to Defendant's counsel by letter on April 15, 2015, that
we would not be considering Defendant's pro se pleading:
Dear Attorney Policichio [sic],
I enclose for your consideration copies of two motions that were
recently filed pro se by Carl l. Fisher. As you are aware-
though Mr. Fisher seemingly is not-a represented criminal
defendant has no right to file pro se pleadings. Commonwealth
v. Ellis, 626 A.2d 1137 (Pa. 1993). This being the case, I intend
to take no further action on the enclosed motions at this time.
Correspondence, Apr. 15, 2015 (Geary, P.I). While we believe that these are sufficient
grounds to support our denial of Defendant's Motions to Quash, we also note that on May 20,
2015, Defendant, through counsel, filed an Omnibus Pre-Trial Motion in which he sought to
dismiss various counts of the Amended Information for substantially the same reasons as
previously argued. To the extent that the arguments Defendant made in his Omnibus Pre-
17
Trial Motion relate back to the Motions to Quash, we addressed them in our luly 21, 2015
Memorandum, which we reproduce in relevant part below:
Defendant argues here that the Commonwealth improperly
amended the Information to add four offenses, and therefore,
the new offenses should be dismissed and the DISTRICT
Attorney sanctioned. We addressed this issue back in October
2013 when we decided Defendant's Motion to Quash Amended
Information. By Order dated November 20, 2013, we denied
Defendant's motion[,] holding that Defendant was not
prejudiced by the amendment because the added offenses arose
from the same factual situation and contain the same basic
elements as the initial charges. See, Commonwealth v. J.F., 800
A.3d 942,945 (Pa. Super. 2002), appeal denied, 812 A.2d 1228(holding that when the original indictment or information rise
out of the same basic elements and factual situation as the
amended indictment or information, the defendant is deemed to
have been placed on notice regarding his alleged criminal
conduct). Having previously decided this issue, we have no
intention of revisiting it now.
Memorandum and Order 4, luI. 21,2015 (Geary, P.l.)
B. Alleged Rule 600 Violation.
Defendant next asserts that the "trial court failed to dismiss the case for violation of
Rule 600." On April 23, 2014, Defendant filed a Motion for Dismissal Under Rule 600.
Hearing on this matter occurred on September 24, 2014, after which hearing, we took the
matter under advisement. On December 19,2014, we ordered the parties to brief this matter,
and the parties complied on January 16, 2015. Defendant essentially argued that delays
arising out of his discovery requests should be charged against the Commonwealth, despite
the fact that many of the continuances had been requested by Defendant. See, Def.'s Supp.
Br. Rule 600 Calc., Jan. 16,2015. Defendant additionally argued that the onus of scheduling
a hearing on his discovery requests was on the Commonwealth pursuant to local rules of
18
court, not Defendant; therefore, delay attributable to a failure to file a scheduling praecipe
should count against the Commonwealth for Rule 600 purposes.
We denied this Motion by Order of March 27, 2015, and stated our reasoning in a
Memorandum accompanying the Order, which we reproduce in its entirety:
This matter is before us on Defendant's Motion for Dismissal
Under Rule 600. For the reasons which follow, the Motion is
denied.
As we understand Defendant's argument, because the
Commonwealth failed to assure that certain pending discovery
motions were scheduled for hearing, all delay in this matter
commencing on or about April 23, 2013 should be chargeable to
the Commonwealth. We disagree.
Neither the Pennsylvania Rules of Criminal Procedure nor our
local rules place the burden of scheduling a hearing or argument
on the Commonwealth. Pa. R. Crim. P. 577 provides, in
pertinent part:
A) Following the filing of a motion,
* * *
(2) if the judge determines the motion reqUIres a
hearing or argument, the court or the court
administrator shall schedule the date and time for the
hearing or argument. Pursuant to Rule 114(B)(2),
notice of the date and time for the hearing or argument
shall be served by the clerk of courts, unless the
president judge has designated the court or court
administrator to serve these notices.
B) The judge promptly shall dispose of any motion.
C) Unified Practice. Any local rule that is inconsistent
with the provisions of this rule is prohibited, including
any local rule requiring a personal appearance as a
prerequisite to a determination of whether a hearing or
argument is scheduled.
Pa. R. Crim. P. 577.
Our local Som. R. Crim. P. 574 governing scheduling, cited by
Defendant, also provides
19
B. All argument cases shall be scheduled for argument
or hearing only upon the filing of a scheduling Praecipe
in the form specified in Som. R.J.A. 1099, available
through the Court Administrator's office or
Prothonotary's office, except the following argument
cases, which shall be scheduled, sec reg., by the Court
Administrator without a scheduling Praecipe:
* * *
2. Motions, petitions and applications for pretrial relief,
including motions to quash, discovery motions, motions
for pretrial conference, motions to suppress, omnibus
pretrial motions and the like. Such matters shall first be
filed with the Clerk of Courts who shall promptly
transmit the same to the Court Administrator. If the case
is on the criminal trial list for the coming trial session,
all such motions shall be scheduled for disposition as
soon as possible, and in all events before the scheduling
conference held preceding the trial session. Otherwise,
such matters shall be scheduled sec reg.
Som. R. Crim. P. 574.
While it is clear that the scheduling provisions of local rule 574
B are contrary to the provisions of Rule 577(A)(2), pursuant to
Rule 577(C) the scheduling requirements of Rule 577 govern.
Under Rule 577(A)(2), scheduling is the responsibility of the
Court and not the Commonwealth. Accordingly, the delay in
scheduling hearings on the pending discovery motion is solely
the responsibility of the Court and cannot be assessed against
the Commonwealth for Rule 600 purposes. See Commonwealth
v. Bradford, 616 A.2d 122 (Pa. 2012). The Comment to the
current version of Rule 600 also provides guidance in this
regard.
Delay in the time for trial that is attributable to the
jUdiciary may be excluded from the computation of
time. See, e.g., Commonwealth v. Crowley, 502 Pa. 393,
466 A.2d 1009 (1983). However, when the delay
attributable to the court is so egregious that a
constitutional right has been impaired, the court cannot
be excused for postponing the defendant's trial and the
delay will not be excluded. See Commonwealth v.
Africa, 524 Pa. 118,569 A.2d 920 (1990).
Pa. R. Crim. P. 600, Comment.
20
As mentioned above, the delay which we must evaluate deals
with the failure of the Court to schedule argument on
Defendant's pending motion for additional discovery. As noted
by the Defense, once the issue regarding the pending discovery
motion was raised at the Call of the Criminal trial List on
February 11, 2014, we ordered that a hearing be scheduled
which was held on February 27, 2014. At that hearing we
directed counsel to attempt to resolve the relevant discovery
issues outstanding within the next 30 days. The within Motion
to Dismiss was filed on April 23, 2014. Despite our directive, it
appears that counsel have failed to address the discovery issues
further.
Because we find that the delay is the responsibility of the Court
rather than the Commonwealth, discussed infra, we reject
Defendant's argument that, despite the waivers filed by
Defendant, all delay from April 16, 2013 must be assessed to
the Commonwealth. Accordingly, Defendant's [M]otion to
Dismiss is denied. We will order a prompt additional hearing
on the discovery issues.
Memorandum and Order, Mar. 17,2015 (Cascio, 1.)
c. Our Denial of Defendant's Motion to Disqualify the District
Attorney's Office.
Defendant also alleges that it was error for us to decline to "disqualify the District
Attorney's office despite [D]efendant's assertion that the District Attorney's Office was
biased against [D]efendant resulting from his private criminal complaint filings against
members of the District Attorney's Office Staff.... " Def.'s Statement'; 4(c).
Defendant first sought disqualification of the DA in a pro se motion filed on April 9,
2015. He alleged in his motion the following:
On December 16, 2014 the Defendant filed a Private Criminal
Complaint, on the D.A,'s [sic] form, asserting that the D.A. and
others have engaged in and/or attempted official oppression,
obstruction of justice, criminal coercion, theft by extortion, and
acts of intimidation and retaliation against him as a victim of,
and witness to, other felonies and misdemeanors perpetrated by
police, witnesses, and prosecutors.
21
The Defendant believes and avers that probable cause exists to
support the criminal prosecution of the D.A. and others for their
acts and failures to act, as outlined in the private criminal
complaint ... [which complaint alleged that because of a] failure
of the D.A. to either approve or disapprove, without
unreasonable delay, a private criminal complaint filed by the
Defendant ... against the Complainant [ZS] and others alleging
that the Complainant fabricated testimony at the Preliminary
Hearing .. .in order to save this malicious prosecution from
being dismissed .... D.A. approval or disapproval of such
complaints is required by Pa.R. Crim. P. Rule 506(A) .....
The D.A. is conflicted in regards [sic] to this prosecution for at
least two reasons:
a. There is probable cause to prosecute Lisa Lazzari-
Strasiser for several felony and misdemeanor
offenses for her failure to either approve or
disapprove the ... private criminal
complaint ... [which] effectively halts the prosecution
of the Complainant for perjury because it prevents
the Defendant from requesting the court to review
her disapproval of the complaint and unreasonably
delays prosecution if she should approve the
complaint. These offenses and the possible criminal
sanctions imposed for them create a clear conflict
that can only be alleviated by disqualifying the
D.A. 's office.
b. The evidence of the D.A.'s obstruction of the
January 28, 2014 private criminal complaint shows
that Mrs. Lazzari-Strasiser and her employees are
aware that the Complainant's testimony is
fabricated, at least in part. As such, the Defense
intends to call her and/or her employees as our
witness at future trials/hearings to be held in this
case, which creates a clear conflict of interest caused
by her criminal conduct.
Def.'s Mot. to Disqualify, Apr. 9,2015.
As we indicated supra, we informed Defendant's counsel that we would not be
reviewing pro se filings, since Defendant was represented by counsel and accordingly had no
22
right to file pro se pleadings. Defendant's trial counsel subsequently "adopted and joined" in
this motion, and, in any event, Defendant re-hashed these claims through counsel in his
Omnibus Pre-Trial Motion. See, Def.'s Omnibus Pre-Trial Mot. 8-9, May 20, 2015.
We addressed this argument in our July 21, 2015 Memorandum, which we excerpt in
relevant part:
Defendant asserts here that the District Attorney has failed to
approve or disapprove several private criminal complaints he
filed in the District Attorney's office. Defendant further asserts
that he plans to call the District Attorney as a witness in his
trial, apparently to question the District Attorney about the
veracity of the juvenile complainant. According to Defendant,
these pending issues create a conflict that disqualifies the
District Attorney from prosecuting his case any further.
Defendant claims that the case should be referred to the
Attorney General's Office for prosecution. We disagree.
First, this argument is partially moot, as the District Attorney
has in fact made a determination on Defendant's private
criminal complaints. Second, the private criminal complaints
have no relevance to the charged offenses in this case. Lastly,
the "conflict" complained of here was created by the Defendant
himself through his filing of several private criminal complaints
and his stated intention to call the District Attorney as a witness
for what is plainly an improper reason.
We are aware of no constitutional provision, statute, rule or case
that would allow a defendant to effectively choose his preferred
prosecutor by creating conflicts for the prosecutor he wishes to
avoid. Therefore, Defendant's Motion to Disqualify the
Somerset County District Attorney and her Assistants is
DENIED.
Memorandum and Order 5-6, Jui. 21, 2015 (Geary, P.J.)
D. Denial of Defendant's Habeas Petition.
Defendant contends that we erred "in denying the defendant's Motion for Writ of
Habeas corpus [sic] by failing to hold a de novo hearing and finding that there was sufficient
23
evidence to establish a prima facie case on each of the charges as alleged in the Information
and the Amended Information .... " Def.'s Statement ~ 4(d).
In Defendant's Petition, he cited 18 Pa. Cons. Stat. §§ 103 and 301 to argue that "the
requirement for the Defendant to be convicted would be that he performed a voluntary bodily
movement as part of the offense; that the Criminal Complaint does not "indicate that the
Defendant performed any voluntary bodily movement"; that the statements attributed to
Defendant in the Criminal Complaint's accompanying Affidavit of Probable Cause are
"ambiguous and do not inevitably lead to the conclusion reported by the Complainant"; and
that, in essence, because there was no "bodily movement" (i.e., anything other than alleged
verbal conduct), "the evidence fails to support that even a single' Act' occurred, much less
two or more. Therefore the Commonwealth has clearly failed to meet their burden to present
evidence that this crime has been committed." Def.'s Pet. for Writ of Habeas Corpus `` 9,
11-18, Apr. 23, 2013. Argument regarding Defendant's Habeas petition occurred on October
30,2013.
We denied Defendant's Petition by Order of November 20,2013:
Defendant's Motion for Writ of Habeas Corpus is DENIED.
Our review of the evidence presented convinces us that there is
sufficient prima facie evidence to allow each count of the
information to be submitted at trial. See Commonwealth v.
Barclay, 62 Som.L.J. 297 (2005).
Order, Nov. 20, 2013.
Defendant, through counsel, filed an Application for Amendment of Interlocutory
Order on December 16, 2013, in which he argued that he was entitled to a de novo hearing
under Somerset County Court of Common Pleas precedent. He cited primarily to
24
Commonwealth v. Marker, 41 Som.L.1. 138, 141 (Pa. Com. PI. Ct. 1982). We denied
Defendant's "application" on December 19,2013.
We first want to draw attention to Defendant's selective citing of our precedents:
while we did hold in Marker that "[i]n the habeas corpus proceeding on the issue of a prima
facie case, the court must hear the testimony de novo rather than decide upon the basis of
testimony at the preliminary hearing," it is hardly the case that "the practice in Somerset
County has always been that in habeas corpus proceedings the Court ... must hear testimony de
novo rather than decide upon the basis of testimony at the preliminary hearing." Def.'s
Application 2. Marker held that a de novo review was required, and Commonwealth v.
Lindeman, 61 Som.L.J. 30, 36 (Pa. Com. PI. Ct. 2003) also held such. However, the other
case Defendant cited in support of his proposition, Commonwealth v. Sigmund, 60 Som.L.J.
231, 245 (Pa. Com. PI. Ct. 2002) does not present the same holding; in fact, there, where the
defendant challenged whether a prima facie case had been established at the preliminary
hearing, we stated, "The Court will determine whether the Commonwealth has established a
prima facie case ... based upon its review of the transcript of the preliminary hearing
which has been provided to the Court." (Emphasis added).
We note that both Marker and Lindeman, which support de novo review, cite to the
same case for this proposition: Commonwealth ex rei Johnston v. Walker, 25 Som.L.J. 70, 75
CPa. Com. PI. Ct. 1970). Walker cites, for this proposition, Commonwealth ex rei Alberti v.
Boyle, 195 A.2d 97 (Pa. 1963) as well as a volume of Standard Pennsylvania Practice. Boyle
dealt with a Habeas petition the defendant filed in order to "be admitted to bail," pursuant to
Pa. Const. Art. I, § 14. The Court held that, "In application for bail in a homicide case, a
decision should be made on the basis of the testimony which is presented by the
25
Commonwealth at that hearing, and, of course, under the pertinent tests hereinabove set
forth." 195 A.2d at 400.
Thus, Boyle's holding did not lend itself to such an expansive reading as that extracted
from it by Walker; and Boyle itself is clearly distinguishable from the case sub judice.
Therefore, we do not consider the cases Defendant cites-which themselves cite only to
Walker-to be binding precedent. Rather, we consider ourselves in line with Sigmund in
which a review of the preliminary hearing transcript was performed. We have found no
appellate authority that mandates a de novo review.
Because the Commonwealth was entitled to rest on the transcript of the preliminary
hearing, which we reviewed and found established a prima facie case against Defendant, we
rejected Defendant's contention that he was entitled to a de novo review ofthe evidence.
E. Denial of Defendant's Writ of Mandamus.
Defendant claims it was error to deny his Writ of Mandamus that was "filed in an
attempt to require the Commonwealth to approve or disapprove the private criminal
complaints filed by defendant." Def.'s Statement ~ 4(e).
The "writ of mandamus exists to compel official performance of a ministerial act or
mandatory duty ... Mandamus cannot issue to compel performance of a discretionary act or to
govern the manner of performing [the] required act." Coppolino v. Noonan, 102 A.3d 1254,
1263 (Pa. Commw. Ct. 2014) (internal quotations and citations omitted). Courts may issue
the writ "where the petitioners have a clear legal right, the responding public official has a
corresponding duty, and no other adequate and appropriate remedy at law exists." !d.
Firstly, we note that our perusal of this case file reveals no Petition for Writ of
Mandamus. However, in regard to the private criminal complaints discussed supra, which
26
Defendant filed against ZS, Detective Popma, and the District Attorney, a Petition for Writ of
Mandamus was filed on June 3, 2015, and docketed separately from the case sub judice.
Def.'s Pet. for Writ of Mandamus, No. 88 MD 2015.
That Petition referenced private criminal complaints filed against ZS for perjury, "and
other crimes" against Detective Popma for making "deliberate false statements"; against the
District Attorney for "her criminal obstruction of petitioner's private complaint ... to conceal
the perjury referred to in that complaint, among other crimes"; and against the District
Attorney for her "conspiracy ... to continue to obstruct justice by rejecting [the former private
criminal complaint against her] without investigation or review." Def.' s Pet. for Writ of
Mandamus ~ 3, No. 88 MD 2015, Jun. 3,2015.
We wrote elsewhere that defendant's "private criminal complaints have no relevance
to the charged offenses in this case." Memorandum 6, Jut 21, 2015. Defendant's Petition
certainly alleges misconduct that pertains to the criminal charges in this case. However,
Defendant's assertions that ZS had lied, that Detective Popma had made false statements, etc.,
insofar as they are relevant to the defense, all could have been-and, as the record reveals,
indeed were-delved into at trial through cross-examination and Defendant's own testimony
once he took the stand.
Defendant's Petition concerned his attempt to compel the District Attorney to file
charges arising from his private criminal complaints; therefore, the Writ pertains to the
District Attorney's performance of her official duties vis-a.-vis those private criminal
complaints, and is not relevant to the charges she had already filed against Defendant. To the
extent that the Petition contains underlying allegations that are relevant to his defense,
Defendant was permitted to raise those issues at trial, and in fact did. Moreover, Defendant's
27
various allegations of misconduct (directed at virtually every participant in this case) have
been engaged with in some depth in his pre-trial motions, as illustrated herein.
In sum: Defendant's Petition is docketed separately, has its own distinct, albeit brief,
procedural history, and the relief it seeks is independent of the criminal charges that had been
filed against him. Furthermore, the factual averments in that Petition, insofar as they are
relevant to the defense, were ruled upon in pre-trial motions, and Defendant again raised these
issues at trial before the jury. Therefore, we submit that our denial of Defendant's Petition is
improperly raised in this appeal.
F. Denial of Various Requests for Relief Presented in Defendant's Omnibus
Pre-Trial Motion.
Defendant's first three assertions of error here all rely on an alleged lack of probable
cause supporting Defendant's arrest, which he alleges consequently made his arrest illegal, as
well as everything flowing from that arrest:
[T]he trial court erred in denying the request for relief as
detailed in defendant's Omnibus Pretrial Motion in the
following respects: 1) by denying the Motion to Dismiss and
Quash the Arrest Warrants because there was a lack of probable
cause and the prosecution retaliated due to defendant's refusal
of the ARD offer; 2) by denying the Motion to Suppress even
though there was no probable cause to arrest and the evidence
obtained was illegally obtained as a result; 3) by denying the
Motion to Dismiss the Amended Information despite the illegal
arrest. ...
Def. 's Statement ~ 4(f)(1 )-(3). We explained our rationale for each of these rulings in our
July 21, 2015 Memorandum accompanying the Order:
A. Motion to Dismiss All Charges and to Quash Arrest
Warrants
Defendant argues that probable cause was not established for
his arrest, and as a result all evidence collected after the arrest
should be suppressed. We disagree. The testimony of the
28
arresting officer and the written statement provided by the
juvenile complainant established reasonable grounds to believe
that a crime had been committed by Defendant. Brinegar v.
United States, 338 U.S. 160, 175-76 (1949) ("Probable cause
exists where the facts and circumstances within their (the
officers') knowledge and of which they had reasonably
trustworthy information (are) sufficient in themselves to warrant
a man of reasonable caution in the belief that[] an offense had
been or is being committed.")
Citing Commonwealth v. Rocco, 544 A.2d 496 (1988),
Defendant also argues that the Commonwealth engaged in
vindictive prosecution by amending the Information to add four
offenses. According to Defendant, the Information was
amended in retaliation for his having refused the
Commonwealth's offer for Accelerated Rehabilitative
Disposition (ARD). Defendant offered no evidence to support
this assertion. The Assistant District Attorney asserted that the
Commonwealth's intent to amend the Information was formed
around the time of the preliminary hearing; that is, well before
Defendant had refused the Commonwealth's offer.
We find Defendant's claim to be without merit. To begin with,
a prosecutor's pre-trial charging decisions do not, as a general
rule, trigger a presumption of prosecutorial vindictiveness.
Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011).
Moreover, the United States Supreme Court has held that due
process rights are not violated when a prosecutor pursues more
serious offenses after an accused decides not to plead guilty to
the originally charged offense. Bordenkirchner v. Hayes, 98
S.Ct. 663 (1978). In this case, the Commonwealth added
offenses after Defendant refused an offer to be placed on ARD.
The Commonwealth has asserted that Defendant's refusal of
ARD had no bearing on the decision to amend the Information.
We accept the Commonwealth's assertion as true; however, we
wish to note that even if the ARD refusal had been the impetus
for the Amended Information, the Bordenkirchner decision
makes it clear that no constitutional violation would result. For
these reasons, Defendant's Motion to Dismiss All Charges and
Quash Arrest Warrants is DENIED.
B. Motion to Suppress Evidence Illegally obtained
The Court having concluded in Section A that Defendant's
arrest was supported by probable cause, Defendant's Motion to
Suppress Evidence Illegally obtained is DENIED.
29
C. Motion to Dismiss Various Counts of the Information
The Court having concluded in Section A that Defendant's
arrest was supported by probable cause, Defendant's Motion to
Dismiss Various Counts of the Amended Information, which is
based on the presupposition that the arrest was invalid, is
DENIED.
Memorandum and Order 2-4, JuI. 21, 2015 (Geary, P.J.).
Defendant's fourth and fifth assertions of error pertain, respectively, to our denial of
his "Motion to Dismiss and Motion for Sanctions despite the Information being improperly
amended," and our denial of his "Motion to Dismiss and Motion for Sanctions despite the
Commonwealth's coercion, extortion, and official oppression it exercised by amending the
Information." Def.'s Statement ~ 4(f)(4), (5). We addressed these issues in supra section
III(I)(A) and directly above.
Defendant's sixth allegation is that we erred in denying his motion to disqualify the
District Attorney's Office, "despite the office's failure to make a decision on private criminal
complaints filed by the defendant regarding members of the Office. [sic]" Def.' s Statement ~
4(f)(6). We addressed this issue supra in section III(l)(C).
Defendant, in his seventh sub-subsection, alleges that we erred "by denying the
defendant's request to dismiss the case pursuant to Pa.R.Crim.P. 600." Def.'s Statement ~
4(f)(7). We addressed this issue supra in section III(1)(B).
G. Defendant's Objection to Transcript.
Defendant claims it was error to not "permit[] a hearing on the defendant's Objection
to Transcript filed June 23, 2015[,] despite defendant's claims that the 2/11/14 transcript was
falsified." Def.'s Statement ~ 4(g).
30
On June 5, 2015, Defendant filed an Application for Order to Transcribe Record for
the Call ofthe Criminal Trial List that occurred on February 11,2014. We ordered the record
transcribed on June 5, 2015, and on June 9, 2015, a transcript of the proceedings was filed.
On June 23, 2015, Defendant filed a pro se Objection to Transcript in which he alleged that
"the information in the transcript has been falsified to fabricate defenses against the
disqualification and criminal prosecution of Mrs. Lazzari-Strasiser in the matters described
[above in this motion]."
We had previously (on April 15, 2015), informed defense counsel that we would not
be taking any action on pro se filings. Subsequently, however, Defendant argued that,
pursuant to Somerset Rule of Judicial Administration 5000.l4(C)(4), he was entitled to a
hearing on his Objection to the transcript. This is not the case.
Somerset Rule of Judicial Administration 5000.14(C) applies to "[c]ontested
proceedings in which testimony is transcribed (including jury trials, nonjury trials, criminal
and civil, law and equity, contested adoption and relinquishment proceedings, contested
guardianship proceedings, contested mental health proceedings, and the like)." Transcripts
for contested proceedings are required to be lodged with the Prothonotary or Clerk of Courts,
during which period objections to the transcript may be filed. Som.R.1.A. 5000. 14(C)(2)-(4).
If a timely objection is filed, the presiding judge "shall cause the objection to be scheduled for
hearing and argument ... " Som.R.1.A. 5000.14(C)(5)(b).
In this case, the transcript at issue was not a transcript of a "contested proceeding"
(that is, it was not a proceeding in which testimony was taken); therefore, the procedures set
forth in Som.R.J.A. 5000.14(C)(5)(b) do not apply in this instance. Moreover, we note that
defense counsel was present at the February 11,2014 Call of the Criminal Trial List, and was
31
fully capable of bringing the matter to the court's attention if he, in consultation with his
client, determined that there was an (alleged) inaccuracy in the transcript.
In sum, Defendant was not entitled to file this objection pro se; our local rules of
judicial administration provide no authority for filing objections to proceedings that are not
contested proceedings; and defense counsel, who had been present at the proceeding, was able
to bring this issue to our attention, but did not. For these reasons, we found that Defendant's
Objection lacked merit.
H. Defendant's Motion in Limine.
Defendant next contends that we erred "in denying defendant's Motion in Limine to
preclude the e-mail exchange between he and his co-worker under the Pennsylvania Rules of
Evidence despite their irrelevance and highly prejudicial nature .... " Def.'s Statement ~ 4(h).
On August 21,2015, Defendant, through counsel, filed a Motion in Limine to exclude
evidence of the e-mail exchange that had occurred between Defendant and Keith Wandel, in
which Defendant referenced, inter alia, taking photographs of ZS, as well as ZS' red hair.
Defendant argued that under Pa.R.E. 403, "the probative value of any such evidence is
outweighed by a danger of unfair prejudice, confusion of the issues, and misleading the jury."
Defendant also claimed that the e-mails may be offered "as evidence of other 'wrongs' or
'other acts', all of which is not admissible to prove the Defendant's character in order to show
that on June 30, 2012, he acted in accordance with any such character. ... " We heard
argument on Defendant's Motion in Limine on August 26,2015, the first day ofthe trial.
Defendant argued, "I'm not sure what the Commonwealth is doing. My recollection
is .. .if you're trying to show M.O. and motive, these would be incidents that would occur prior
to the time of the alleged event. But we don't have that here. We have a conversation that
32
occurred .. .longer than two weeks, two months after he was confronted by the police and
given some indication as to what was going on. Maybe this is a joke .... " Trial Tr. 1.8-9,
Aug. 26, 2015. Defendant also claimed that all of the statements in the e-mail were
prejudicial. !d. at 1.9. The e-mail "has no direct relevance to the incident that occurred on
June 30th. I think it's all prejudicial." Id. at 1.10.
The Commonwealth argued that the e-mail was relevant as it is evidence that "could
reasonably show that a fact is slightly more probable than it would appear without the
evidence." Id. at 1.11. As the Commonwealth stated,
The testimony of [ZS] in this case .. .is going to be that he was
propositioned; he went over to speak to Mr. Fisher about
mowing his lawn; and it was at that time that the allegation is
that Carl Fisher. .. propositioned him ... and ... Mr. Fisher's
comment to [ZS] was, after soliciting him for oral sex, was .. .I
like redheads ....
Your Honor, the e-mails show that the defendant had an interest
in the victim, an unhealthy interest in a 14-year-old red-headed
boy. And I think it .. .lends credence to [ZS'] statement that it is
not in a vacuum ... that Carl Fisher had an interest in [ZS] and
that that statement likely could have occurred.
It makes it, as McCormick said, slightly more probable.
Id. at 1.11-12. The Commonwealth noted that the standard is "unfair prejudice," and argued
that standard had not been met. Id. at 1.12. Defendant then reiterated that the e-mail is
"highly prejudicial. I think .. .if it's relevant, it's so marginally relevant that to put it in is
going to be unfair and prejudicial to this defendant." Id. at 1.14.
Questions as to the admissibility of evidence are soundly within the discretion of trial
courts, and may only be reversed upon a showing of abuse of discretion. Commonwealth v.
Belknap, 105 A.3d 7, 9-10 CPa. Super. Ct. 2014). We determined that the e-mail exchange is
clearly relevant under Pa.R.E. 401, which states that evidence is relevant if "(a) it has any
33
tendency to make a fact more or less probable than it would be without the evidence; and (b)
the fact is of consequence in determining the action."
The issue in this case was whether Defendant propositioned ZS for oral sex and made
comments to the effect that he found ZS' red hair attractive. The e-mail established that
Defendant had made statements about the possibility of photographing ZS, and that he found
ZS' red hair to be a "good feature." Defendant's statements make it more probable that
Defendant had found ZS attractive, and therefore more likely to have propositioned ZS.
Pursuant to Rule 402, "All relevant evidence is admissible, except as otherwise
provided by law." However, relevant evidence may be excluded where "its probative value
is outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence." Pa.R.E. 403. As the comment to the rule indicates, '''unfair prejudice' means a
tendency to suggest decision on an improper basis or to divert the jury's attention away from
its duty of weighing the evidence impartially." We found that the jury was capable of
determining the extent to which the e-mail corroborated ZS' claims, and that the jury was
competent to ascertain whether Defendant's statements were jokes, in earnest, or somewhere
in between. Therefore, the e-mail's relevance was not outweighed by unfair prejudice.
Defendant also argued that the e-mail constituted prohibited evidence of "Crimes,
Wrongs or Other Acts," prohibited under Rule 404(b). Unfortunately, Defendant was specific
in neither his Motion, nor at the pre-trial hearing, as to what about the e-mail exchange
constituted, or referenced, a "crime, wrong, or other act." The inculpatory statements
Defendant made to Wandel cannot themselves be the bad acts, otherwise a Defendant's
34
subsequent inculpatory statements would never be admissible. Therefore, it seems to us that
the alleged bad acts are those referenced in the e-mail.
However, we believe that there are no crimes, wrongs, or other bad acts contained
within the e-mail. Specifically, the e-mail alludes to prior discussion between Wandel and
Defendant as to possibly taking pictures of ZS, and that Defendant finds ZS' red hair to be a
"good feature." However, contemplation, and even discussion, of taking photos of ZS, no
matter how improper it might be, is not a prior crime, wrong, or other bad act; therefore, this
evidence is not subject to a Rule 404(b) analysis.
In Commonwealth v. Luster, 71 A.3d 1029, 1050 (Pa. Super. Ct. 2013), the appellant
had been tried and convicted for murder based on his having thrown the victim out of his car
on a highway, causing the victim was struck and killed by an automobile. At trial, the
Commonwealth produced a witness who testified that he lived in the apartment where victim
lived with her boyfriend, and that once the victim's boyfriend would leave the apartment, the
appellant would arrive, after which the appellant and victim would often argue.
The appellant argued on appeal that this testimony was "inadmissible evidence of
Appellant's prior bad acts." !d. The Superior Court concluded that "there is no merit to
Appellant's argument. Indeed, we fail to see how [the] testimony could be characterized as
evidence of 'prior bad acts.' [The witness] merely testified that Appellant and the victim
often argued ... nothing in [his] description of the couple's arguments referenced physical
abuse or violence." Id. In other words, a statement otherwise properly admitted at trial that
references a defendant's conduct does not necessarily reference "prior bad acts," even if that
conduct may be detrimental to the defense.
35
In the instant case, Defendant's conduct amounts to much less than that in Luster
insofar as the conduct referenced was mere discussion between the two parties about
Defendant's intent to take photographs of ZS, and discussion is not a prior bad act. We
therefore did not find that Defendant's discussions about photographing ZS, or finding his red
hair to be attractive, constituted "crimes, wrongs, or other acts" within the meaning of the
Rule.
I. Denial of Defendant's Request for Change of Venue.
In his last assertion of pre-trial error, Defendant asserts that we erred in denying his
request for a change of venue. Def.'s Statement ~ 4(i).
Defendant had, in his Omnibus Pre-Trial Motion, requested a change in venue. May
20, 2015 `` 26-27. In our July 21,2015 Memorandum, we deferred this request until the time
of jury selection. Voir dire commenced on August 10, 2015; the parties were able to select a
jury without issue; and Defendant did not thereafter renew his motion for change of venue.
Pa.R.Crim.P. 584(a) provides that we may issue an order for change of venue "when it
is determined after hearing that a fair and impartial trial cannot otherwise be had in the county
where the case is currently pending." However, as case law makes clear, "[t]he grant or
denial of a change of venue is a matter within the sound discretion of the trial judge, who is in
the best position to assess the community atmosphere and judge the necessity for a venue
change." Commonwealth v. Pursell, 495 A.2d 183, 187 (Pa. 1985) (internal citations
omitted).
We recognize that "pre-trial prejudice is presumed" in certain situations, such as
where "(1) the publicity is sensational, inflammatory, and slanted towards conviction rather
than factual and objective; (2) the publicity reveals the accused's prior criminal record, if any,
36
or it refers to confessions, admissions, or reenactments of the crime by the accused; and (3)
the publicity is derived from police and prosecuting officer reports," Id. However, none of
these circumstances were present in this case, and no evidence of such was submitted; rather,
Defendant only made conc1usory allegations of prejudice. And, in any event, "[t]he pUblicity
must be so extensive, sustained and pervasive without sufficient time between publication and
trial for the prejudice to dissipate, that the community must be deemed to have been saturated
with it." Id. This was not the case. We therefore denied Defendant's Motion for Change of
Venue.
2. Trial Errors.
A. Admission of Defendant's E-mail.
Defendant alleges, again, that we erred in "ruling that the e-mails between defendant
and his co-worker were admissible despite them being irrelevant and unfairly prejudicial (see
4g, above [sic]). Def.'s Statement ~ 5(a). As Defendant's own statement illustrates, this issue
has already been raised, and we have accordingly already addressed it. See, supra §
(III)( 1)(h).
B. Denial of Defendant's Request to Question the Complainant Despite New
Information as to his Willingness to Testify.
Defendant next alleges that "the trial court erred in denying defendant's request to
question the complainant immediately prior to trial regarding his intentions to testify and
dismissal of the charges despite new information as to his willingness to testify." Def.'s
Statement ~ 5(b). This matter was addressed on the record, which we reproduce in relevant
part:
Mr. Policicchio: [ ... ] My-my question is this-and-you
know, if this boy indicated-if he indicated
that he does not want to pursue this, he
37
doesn't want to go any further, that bears on
his credibility. When he comes into the
District Attorney's Office and discusses the
matter, I'm not concerned about what he was
instructed by the D.A .. .I think I'm allowed
to inquire as to the mother as to whether or
not she was involved in the decision-making
process as to whether or not he should
proceed ...
You know, the question is-and I think
it's-I think it's a fair question-did [ZS]
call the D.A.'s office? Is he the one that
indicated that he didn't want to pursue it?
Mr. Carbonara: 1.. .guess my point is: I don't know how it's
relevant. The case was scheduled for today.
He's here to testify. I don't see how
conversations leading up to trial between
myself and the victims about whether he
wants to move forward and the reasons why
he mayor may not want to go forward, why
they are going to become an issue at trial?
Mr. Policicchio: I'm not intending ... to get involved in any
type of conversations that occurred between
Counsel for the Commonwealth and this
victim .. .I think it bears on this boy's
credibility if he has expressed that he doesn't
want to proceed with this thing. I think it's a
fair question
[ ... ]
The Court: I think that that might be a fair question.
[ ... ]
Mr. Carbonara: So what are you going to ask him: Have you
expressed to your mom and the District
Attorney that you don't want to pursue this?
Mr. Policicchio: I think that's a fair question.
Mr. Carbonara: That's a conversation with me and I'm stuck
having to explain it and I think that's unfair
38
to me that I have to be the one now to
divulges it [sic]. If he's going to ask the
question: Did you ever tell anybody that you
don't want to move forward and then he
walks away and it's floating out there, now
I'm stuck trying to explain privileged
material.
The Court: Good point.
Mr. Policicchio: I don't see, Judge, how the issue of privilege
has any-any bearing on this issue at all.
We ... see these circumstances all the time.
We see domestic assault cases. Woman said
that husband struck her. During the course
of time, she'll make a statement to other
people saying: Yeah, I don't want to ... pursue
[this] ... you can infer from that that not
wanting to pursue something means that
either it didn't happen or that what might
have been said before is not credible ... we
have that happen all the time. We cross-
examine people on that basis all the time.
And he can certainly get on the stand and
explain it away. He can certainly say: I got
cold feet or I was afraid that someone would
question me too hard or what have you. But
I think it's a fair question.
Mr. Carbonara: So I disagree. I think the fact that I divulged
to my colleague that I may have a witness
who contacted our office about having cold
feet, I think I'm stuck explaining it away. I
don't think that's fair.
The Court: And in the end, it is still a conversation
between an alleged victim and the
Commonwealth's attorney. That is a
discussion between them. And I disagree,
that's privileged. That's privileged. Just like
the discussions that you have with your
client ... We are going to stand in recess. I'll
ponder this during recess. Before we bring
the jury back, I will come in and announce
my decision.
39
[ ... ]
The Court: During the recess, of course, I had an
opportunity to look at some of the legal
authority and what I think this case comes
down to is this analysis; and I say this ....
In every criminal case before the case goes to
trial, there is a discussion that takes place
between the Commonwealth and the
defendant or Defense Counsel. Those
discussions are driven by what the alleged
victim is telling the Commonwealth and what
the defendant is telling his defense attorney.
For the victim ... that decision is one that
requires them to consider whether they want
to testify, whether they want to go through
the discomfort of having to get on the stand
and so on.
For the defendant, the decision often is do
they accept the plea offer, things like that.
Now, my view is all of that discussion
between the Commonwealth and Defense
Counsel, driven by what the alleged victim
and the defendant are telling their attorneys,
is protected. It ... can't be pierced. And what
I think we're going to be doing here, if I
allow these questions to be posed to this
particular witness, the alleged victim's
mother or the victim himself, is that I am
allowing those discussions to be pierced.
And so for that reason, I am not going to
allow the defendant to continue to probe
those areas.
Trial Tr. 1.97-1.104, Aug. 26,2015.
To the extent that it is not clear from our foregoing comments on the record, we wish to
clarify that we considered the disclosures made prior to trial between prosecution and defense
40
counsel to be part of the pretrial negotiations that take place in virtually every case. In our
view, frank disclosures of this type, when made between counsel, should be protected as a
matter of public policy. In this regard, we draw the Court's attention to Pa.R.E. 408 which
prohibits certain uses of "statement[s] made during compromise negotiations". Pa.R.E.
408(a)(2). We suggest that the disclosures made in this case are akin to "statements made
during compromise negotiations", and as such, the disclosures should receive like protection.
c. Permitting ZS' July 3, 2012 Statement to go to the Jury.
Defendant argues that it was improper to allow ZS' statement, which he made to
police on July 3, 2012, to go to the jury as an exhibit. Com's Ex. B, Aug. 26,2015. At trial,
defense counsel objected to the admission of Exhibit B: "I find it unusual to allow a
statement-his version is as he testified to on the witness stand. So for that reason, I object to
the entry of the statement. I had no objection to it being labeled as something that he could be
confronted with, but L.don't know that that would be proper to put his statement in. He's
already testified." Trial Tr. 1.211, Aug. 26, 2015. We admitted Exhibit B over Defendant's
objection.
Defendant later amplified this objection in his Motion for New Trial, in which he
argued,
The Court erred by allowing the Commonwealth to enter the
Complainant's sworn statement dated July 3, 2012 into evidence over a
defense objection that it is hearsay, Commonwealth v. Jubilee, 403 Pa.
Superior Ct. 596, 589 A.2d 1112 (1991). Hearsay is inadmissible and
therefore should have been given no weight in the jury's deliberations.
Under Pa.R.E. Rule 613(c)(2) the statement was properly used by the
Commonwealth as a prior consistent statement in an attempt to
rehabilitate the Complainant's testimony at trial after defense counsel
impeached the Complainant's trial testimony with the Complainant'S
inconsistent testimony at the preliminary hearing. The Commonwealth
exceeded this allowable use of the statement by submitting it as a trial
exhibit.
41
Def.'s Mot 1-2, Oct. 27,2015. Our understanding is, therefore, that Defendant did not object
at trial, nor in his Motion for New Trial, to ZS' statement being marked and used at trial, that
is, there is no objection to the Commonwealth having "confronted" ZS with his prior
consistent statement in order to rehabilitate his testimony which had been impeached. Rather,
Defendant takes issue with the statement having been provided to the jury.
Jubilee does in fact state all that Defendant cites. However, we believe that case is
distinguishable from the case sub judice. In Jubilee, the victim, a six-year old girl, had been
raped by her uncle. Id. at 1113. The first time the girl attempted to report the incident to her
mother, the girl was "ignored." Id. Later, mother questioned the girl about the incident and
the girl twice denied that she had been abused. Id. Still later that same day, the girl admitted
to her mother that the abuse had occurred, and the girl subsequently made the same reports to
two social workers and a police officer. Id.The girl was "vigorously cross-examined," and admitted that she had initially been
"reluctant to tell her mother," because of threats her uncle had made. Id. After the girl
finished testifying, the Commonwealth presented testimony by the two social workers and
police officers as to statements that the girl had made to them regarding the assault. Id. The
defendant appealed the admissibility of the girl's prior consistent statements.
The Superior Court presented an overview of applicable law, as cited by Defendant,
before going on to apply that law to the case before it:
Here, the victim admitted that she had initially told her mother
that she had not been assaulted. She explained that she had
done so because of her fear of appellant. The admission of the
statements detailing the assault which the victim made to two
social workers and a police officer, therefore, could not properly
be offered to deny the fact that the victim had made inconsistent
statements. Similarly, the testimony of the two social workers
42
and the policeman did not explain why the victim had given
inconsistent statements. Instead, the Commonwealth used these
witnesses to provide testimony which was cumulative of the
victim's testimony and thereby intended to bolster the victim's
credibility by demonstrating that she had told a version of
events consistent with her trial testimony more often than she
told the inconsistent version of events. Such a use of prior
consonant statements exceeds the limited purpose for which
they are allowed. When the trial court allowed the prior
consonant statements for such a purpose, it abused its discretion
and committed an error of law.
Jubilee, 589 A.2d at 1117 (emphasis added). So Jubilee involved admission of prior
consistent statements to rehabilitate the witness who had made prior statements that were not
only inconsistent, but which actually denied the entire incident. Furthermore, those prior
consistent statements had been made after the inconsistent statements, therefore, they had no
real rehabilitative value since they had not been made prior to the inconsistent statements.
However, where witness testimony has been impeached based on other grounds,
admission of prior consistent statements is entirely appropriate: "The principle exception to
the general rule of exclusion is that prior consistent statements may be admitted to corroborate
or rehabilitate the testimony of a witness who has been impeached, expressly or impliedly, as
having a faulty memory, or as having been induced to fabricate the testimony by improper
motive or influence." Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. Ct. 2005)
(internal citation omitted).
As courts subsequent to Jubilee have noted, "Jubilee is distinguishable [because it]
involves a prosecutor's attempt to use prior consistent statements to bolster a witness who
provided a contradictory version of the facts ... here, the Commonwealth utilized the victim's
prior consistent statements to rebut an inference of recent fabrication arising during cross-
examination." ld. at 513.
43
In this case, ZS was subject to impeachment during cross-examination where defense
counsel attempted to demonstrate that ZS had testified at trial to details that he had not
testified to at the preliminary hearing, though Defendant also broached the subject of the prior
consistent statements:
Q: Isn't it true that in that transcript [of the preliminary hearing
which occurred on December 5, 2012] you make no mention
whatsoever about Mr. Fisher saying that you [sic] like red hair?
A: It may have been possible.
Q: Well, may-is it possible? What is it? Is it true or is it
possible?
A: I don't remember in said that in the transcript or not.
Q: Well, we are going to take a look ... but if I were to tell you
that it was not in the transcript, would you be surprised by that?
[ ... ]
A: Yes.
[". ]
Q: Just keep reading. That's your testimony. You show me-I
want you to show me where you testified on December 5, 2012,
that Carl said he liked red hair.
[The Commonwealth stipulates to the absence of that testimony
in the record rather than having ZS continue to read the
transcript to look for something that is not there.]
Q: So you agree that you did not testify at the Preliminary
Hearing about Carl liking your red hair, is that right?
A: Correct.
Q: Now, in your written statement, you indicate that after you
had this conversation with Carl, that "he said he liked redheads;
I said, no, and I ran off his porch." Do you remember that in
your written statement?
44
A: Yeah.
[ ... ]
Q: [At the preliminary hearing,] [y]ou said: "I said no and
walked away."
A: Correct.
Q: So in the written statement, you said you ran away; in the
transcript ... you walked away. Did you run away or did you
walk away?
A: I ran away.
Trial Tr. 1.152-54, Aug. 26, 2015. These questions came on the heels of a line of
questioning as to whether Defendant had complimented ZS' hair not on the porch during this
incident, but in a prior, more appropriate, situation:
Q: Do you remember having a discussion with ... Ryan and
Dakota Thomas about you not having a bicycle and Carl then
coming and speaking to you folks? Do you remember that?
A: About me not having a bicycle?
Q: Yeah.
A: No.
Q: Do you remember having a conversation with Ryan teasing
you about your hair color?
A: Yeah.
[ ... ]
Q: Do you remember Ryan teasing you about your hair color
and asking you what you do when people call you pumpkin
head? Do you remember that?
A: No.
Q: Okay. What was he teasing you about?
45
A: Just red hair.
Q: All right. So ... when he was teasing you about your red
hair, isn't it true that Carl said: I like the color of Zack's hair.
There's nothing wrong with Zack's hair color.
A: I don't remember.
Q: You don't remember him saying that?
A: No.
[ ... ]
Q: But you don't remember Carl saying anything about: Hey,
there's nothing wrong with Zack's hair; I like red hair?
A: No.
Q: You don't remember him saying that?
A: I don't.
Q: Could have said it, but you don't remember?
A: Could have.
!d. at 1.144-46.
Later, defense counsel returned to the apparent discrepancy between ZS' testimony at
the preliminary hearing and his earlier statement:
Q: Is [what you testified to at the preliminary hearing] the same
as what you said in your statement?
A: No.
Q: What's different about it?
A: I left out some details.
Q: You left out some details where?
A: About the red hair, the name your price.
46
Id. at 1.158.
As we noted supra, "prior consistent statements may be admitted to corroborate or
rehabilitate the testimony of a witness who has been impeached, expressly or impliedly, as
having a faulty memory, or as having been induced to fabricate the testimony by improper
motive or influence." Hunzer, 868 A.2d at 512 (internal citation omitted). Moreover, "[i]t is
not necessary that the impeachment be direct; it may be implied, inferred, or insinuated either
by cross-examination, presentation of conflicting evidence, or a combination of the two." Id.(internal citation omitted).
We found that Defendant, through cross-examination, attempted to impeach ZS by
drawing out small "inconsistent statements," such as the run/walk distinction, and that
Defendant impliedly impeached ZS' ability to recollect whether the red hair remarks
Defendant made had actually occurred during this incident or previously; and, therefore, prior
consistent statements were admissible to rehabilitate ZS. See also, e.g., Trial Tr. 2.322, Aug.
27, 2015. We believe these circumstances justified admission of ZS' prior consistent
statement.
In Hunzer, the Superior Court noted that the victim there had not "provided a
contradictory version of the facts," contra Jubilee; moreover,
Review of the record indicates the character of appellant's
impeachment was such that the trial court could reasonably
exercise its discretion to permit admission of evidence of prior
consistent statements to corroborate the child victim's
impeached testimony ... The victim was subjected to extensive
cross-examination in an attempt to discredit her recollection of
the incident in question ... [the defendant] questioned [the
victim] about inconsistent statements the victim had given
during interviews ... Moreover, [the defendant] indirectly
impeached the victim's testimony through his denial [of her
account].
47
868 A.2d at 513.
We submit that this case is much closer to Hunzer than Jubilee. It is similar to Hunzer
m that Defendant attempted to impeach ZS by way of cross-examination focused on
inconsistencies between his testimony and his prior statements. This case is dissimilar to
Jubilee in that ZS had never denied to anyone that the events occurred. Moreover, as we
noted supra, Defendant seemed to agree at trial, and even in his Motion for New Trial, that
the statement was properly used as a prior consistent statement. Rather, he took issue only
with the statement being provided to the jury.
However, once it is determined that the prior consistent statement is admissible, "it [is]
within the trial judge's discretion to determine ifthe jury [can] take the written statement with
it." Commonwealth v. Whyatt, 340 A.2d 871, 875 (Pa. Super. Ct. 1975). Moreover, an abuse
of discretion is the required showing to justify reversal. Id. Pa.R.Crim.P. 646(A) also
supports our ruling: "Upon retiring, the jury may take with it such exhibits as the trial judge
deems proper, except as provided in paragraph (C)." Rule 646(C) precludes the jury from
having (1) a transcript of any trial testimony; (2) a copy of any written or otherwise recorded
confession by the defendant; (3) a copy of the information or indictment; and (4) except as
provided in paragraph (B), written jury instructions." We were thus permitted, pursuant to
Rule 646(A), to allow the jury to see the prior consistent statement during deliberation, once it
was determined that the statement was properly admitted. Rule 646(C), which is otherwise
the only provision limiting 646(A), was not implicated.
D. Our Refusal to Give a "Delayed Reporting" Jury Instruction.
Defendant also alleges that we erred "in not giving the 'delayed reporting' jury
instruction." Def. 's Statement'; 5(d). At trial, defense counsel argued that "the facts of this
48
case would support charging the jury under [Suggested Standard Criminal Jury Instruction
4.13A]," to which the Commonwealth responded, "I do not believe that the jury instruction
for prompt complaint applies in this case and I think the record reflects that the victim in this
matter did quickly complain within 12 hours of it; and, therefore, I don't think the prompt
complaint instruction is appropriate. I think that instruction is intended to be utilized when
either weeks, months or years have passed." Trial Tr. 2.331, Aug. 27, 2015. We denied
Defendant's request for this point of charge. Id.A charge "is considered adequate unless the jury was palpably misled by what the trial
judge said or there is an omission which is tantamount to a fundamental error. Consequently,
the trial judge has wide discretion in fashioning jury instructions." Commonwealth v.
Thomas, 904 A.2d 964, 970 (Pa. Super. Ct. 2006) (internal citations omitted). Moreover, we
are not "required to give every charge that is requested by the parties[,] and [our] refusal to
give a requested charge does not require reversal unless the [Defendant] was prejudiced by
that refusal." Id. (internal citation omitted).
As the Superior Court has noted, "[t]he prompt complaint instruction is based upon a
belief that a victim of a violent assault would reveal the assault occurred at the first available
opportunity." Id. The purpose of the instruction was to "allow a jury to call into question a
complainant's credibility when he or she did not complain at the first available opportunity."
Id.However, the propriety of this instruction "is determined on a case-by-case basis
pursuant to a subjective standard based upon the age and condition of the victim." Id. As the
court explained, "where the victim of a sexual assault is a minor who may not have
appreciated the offensive nature of the conduct, the lack of a prompt complaint would not
49
necessarily justify an inference of fabrication." ld. Furthermore, "prompt reporting does not
require a revelation to the first person one sees after his or her attack." 1d. at 971.
ZS gave a credible explanation for the twelve hour period between Defendant's
solicitation and ZS' report: ZS went home after the event and went straight to his room, and
did not tell his mother because, "It was something I didn't feel comfortable telling her." Trial
Tr. 1.119, Aug. 26, 2015. While ZS could not recall if he ate supper with his mother, he
testified that his sister returned home from work around 12:30 a.m., and he spoke with her
before going to bed around 1:30 a.m., id. at 1.161, after which he laid there, "just thinking
[about] what Carl said to me. I felt uncomfortable knowing that I had to live beside him, and
so I went back to my mom's room crying and told her what had happened, that we had to talk,
and told her what he said to me." ld. at 1.120.
Taking into account ZS' was age fourteen at the time; the fact that this solicitation was
made by ZS' long-term next-door neighbor, whom ZS had done yard work for over the course
of years, and who had been generous to ZS' family and children in the neighborhood
generally; that the subject-matter of the incident made ZS feel uncomfortable about disclosing
this to his mother and sister; and that ZS ultimately reported the incident to his mother and
sister within approximately twelve hours, before even being able to fall asleep for the night,
we found that the time between the incident and ZS' report to his mother was not sufficient
enough to warrant a jury instruction as to delayed reporting.
3. Denial of Defendant's Motion for New Trial.
Defendant alleges that the "trial court erred in denying defendant's 11110/15 Motion
for New Trial." Def.'s Statement ~ 6. Defendant did not file a Motion on November 10,
2015. However, we denied Defendant's Motion for New Trial on November 9,2015, and that
50
Order denying Defendant's Motion was filed on November 10, 2015. The Motion itself was
filed on October 27,2015.
In his Motion, Defendant argued, "All verdicts were against the weight of the evidence
in that all Commonwealth testimony [by ZS] ... was improperly bolstered by inadmissible
hearsay ... [i.e., by the Court] allowing the Commonwealth to enter the Complainant's sworn
statement dated July 3, 2012 into evidence over a defense objection that it is hearsay .... "
Def.'s Mot. ~ 1, Oct. 27,2015. Defendant relied primarily on Commonwealth v. Jubilee, 589
A.2d 1112 (Pa. Super. Ct. 1991).
We addressed this argument in supra section III(2)(C).
Defendant also made a "weight of the evidence" argument, which we address in infra
section HI( 6).
4. Sentencing Errors.
Defendant makes the following allegations of error pertaining to his sentencing:
[T]he trial court improperly considered the Sexual Offender
Assessment Board report during the sentencing despite the
Commonwealth's decision not to seek a Sexually Violent
Predator designation; [and] ... the discretionary aspect of the
sentence was in error because
a. The defendant had no prior criminal history; and
b. The defendant's Sexual Offender Assessment Board
[SOAB] report was considered despite the
Commonwealth not seeking a Sexually Violent
Predator [SVP] designation.
Def. ' s Statement `` 7-8.
We indeed considered the information in the Sexual Offenders Assessment Board's
report, though the Commonwealth had not sought a Sexually Violent Predator designation.
Sentencing Hr'g 11,27, Nov. 19,2015. The Commonwealth asked for the SOAB report to be
51
made part of Defendant's pre-sentence investigation report and thereby a part of the record.
Jd. at 11. Defense counsel objected:
Your Honor, I object to the introduction of the report. The
purpose of the SOAB investigation, as I understand it, was to
gather information ... and make a recommendation to the Court
as to whether or not Mr. Fisher should be determined to be a
sexually violent predator. [ ... ]
[T]he problem with allowing this into evidence ... .is that there
are a lot of findings in here, which are, frankly, not supported
by anything other than the opinion of this individual, who is not
here today; and we have pages ofhearsay ... of allegations made
by people who weren't even related to this case and did not
testify at trial.. .who are not here and who I won't have an
opportunity to question. So for those reasons, I think this
should be stricken.
Jd. at 12-13. We asked the Commonwealth to respond; and the Assistant District Attorney
rejoined, "I believe the information contained therein is relevant as it relates to the Court's
sentencing of Mr. Fisher today; and that is, the Court .. .in its ... broad discretion in its
sentencing powers [can] tak[e] what information it would like into consideration for his
sentence today." Jd. at 13. We admitted the report pursuant to Pa.R.Crim.P. 702. Jd.
Our perusal of relevant case law has uncovered no binding appellate precedent
indicating that we cannot consider the SOAB report when the Commonwealth has not sought
an SVP designation. We believed that Defendant "is not entitled to the same due process
protections at the time of sentencing that he is at trial," and that "hearsay testimony is
precisely the type of evidence ... [which] is the right of a court in sentencing to consider ... even
though such information is obtained outside the courtroom from persons whom the defendant
has not been permitted to confront or cross-examine." Commonwealth v. Medley, 725 A.2d
1225, 1230 (Pa. Super. Ct. 1999) (internal quotations and citation omitted).
As the Superior Court noted, "the admission of hearsay in sentencing proceedings,
52
especially those which do not involve a capital cnme, is a common occurrence." Jd.
Moreover, "sentencing courts, as a matter of course, consider hearsay in nearly every
sentencing case since pre-sentence investigations are routinely ordered and considered by the
court, and a pre-sentence report is the very definition of hearsay, i.e., the pre-sentence report
is a report by a probation officer reciting other persons' out-of-court statements offered for
their truth." Jd.
We submit that Pa.R.Crim.P. 702(A)(3), insofar as it directs that the pre-sentence
investigation report "shall include information regarding the circumstances of the offense and
the character of the defendant sufficient to assist the judge in determining the sentence,"
permitted attachment of the SOAB report, which aided us in ascertaining the "character of the
defendant." See also, Commonwealth v. P.L.s., 894 A.2d 120, 135 (Pa. Super. Ct. 2006)
(Bender, 1., concurring) ("I do not intend that admissions or other information obtained
through the SOAB investigation be excluded from consideration in imposing sentence.
Indeed, Megan's Law provides that '[i]n all cases where the [SOAB] has performed an
assessment pursuant to this section, copies of the report shall be provided to the agency
preparing the presentence investigation.' 42 Pa.C.S.A. § 9795.4 Thus, Megan's Law
contemplates that information from the SOAB investigation may properly find its way into
the PSI report and, accordingly, into the hands of the sentencing judge.") (emphasis m
original); Commonwealth v. Shugars, 895 A.2d 1270, 177 n. 9 (Pa. Super. Ct. 2006).
In any event, for Solicitation to Commit IDSI, we sentenced Defendant to
incarceration in a State Correctional Institution for not less than four years nor more than
eight years, with the other inchoate offenses merging for sentencing purposes; and for
Corruption of Minors we sentenced Defendant to incarceration in a State Correctional
53
Institution for not less than six months nor more than seven years, to be served concurrently
with the Solicitation sentence. We note that our sentence for Solicitation is well within the
standard range of the sentencing guidelines (i.e., thirty-six to fifty-four months). See,
Guideline Sentencing Form 1, Jan. 6,2016.
Sentencing "is a matter vested within the sound discretion of the sentencing judge, and
a sentence will not be disturbed on appeal absent a manifest abuse of discretion." Shugars,
895 A.2d at 1275. An abuse of discretion is more than a mere error in judgment; it must be
shown that "the sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly umeasonable
decision." !d. Moreover, where a Defendant has not alleged that the trial court applied the
guidelines erroneously or that the court sentenced him outside the guidelines, the defendant
must demonstrate that the case involves circumstances where the application of the guidelines
would be "clearly umeasonable." 42 Pa. Cons. Stat. § 9781(c).
Here, we sentenced within the guidelines, and we stated our reasons on the record as
being, apart from the findings in the SOAB report, that "the defendant's actions resulted in
emotional trauma to the victim and the victim's family[,J" "the seriousness of the offense, the
defendant's lack of remorse [whichJ indicate that defendant's rehabilitation will require an
extended period of incarceration[,]" and the fact that "any lesser sentence would depreciate
the seriousness of the offenses." Hr'g Tr. 29, Nov. 19, 2015. We believe that Defendant's
damaging criminal act, along with his umepentant conduct throughout the duration of these
proceedings, more than support application of the standard range guidelines, and, therefore,
there was nothing umeasonable about sentencing Defendant in accordance with them.
Furthermore, "The sentencing court is not required to state its reasons for sentencing
54
within one guideline range over another." Commonwealth v. Wright, 600 A.2d 1289, 1291
(Pa. Super. Ct. 1991) (emphasis in original). Moreover, where a "court consider[s] the
statutory factors, including the mitigating circumstances, [and] sentence[s] within the
guidelines, and state[s] its reasons on the record for the sentence imposed," the court
"properly discharge[s] its function, and [is] neither required to sentence within the mitigated
range nor specify its reason for choosing not to do so." Id. at 1293.
5. Prosecutorial Misconduct.
Defendant alleges that
The District Attorney's Office engaged in prosecutorial
misconduct for amending the information after the preliminary
hearing, arresting the defendant without probable cause,
coordinating testimony, failing to act on defendant's private
criminal complaints, and failing to request the Attorney General
prosecute this case due to the conflict of interest arising from
the private criminal complaints.
Def.' s Statement ~ 9. Each of these contentions has been addressed multiple times in this
opinion and throughout the course of this litigation. See, supra §§ (III)(1)(A), (C), (E), (F).
6. Verdict Against the Weight and Sufficiency of the Evidence.
Defendant was convicted of Corruption of Minors; Solicitation to Commit IDSI;
Solicitation to Commit Indecent Assault; Attempted IDSI; and Attempted Indecent Assault.
Defendant claims, lastly, that the verdict was against the weight of the evidence. Def. 's
Statement ~ 10. Defendant does not specify in his Statement how the verdict was against the
weight of the evidence. However, given that Defendant took the stand and offered a version
of events that was contrary to what ZS had testified to, we must assume that Defendant is
asserting here that the jury should have believed his testimony rather than that of ZS. We
disagree.
55
When there is a claim that a verdict is against the weight of the evidence, our role "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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal quotations and citation
omitted). In other words, we must determine "whether the preponderance of the evidence
opposes the verdict .... " Id. at 1056 (internal quotations and citation omitted). Put otherwise,
"A verdict is against the weight of the evidence only when the jury's verdict is so contrary to
the evidence as to shock one's sense of justice." Commonwealth v. Vandivner, 962 A.2d
1170, 1177 (Pa. 2009).
We suggest the verdict here was consistent with the weight of the evidence. In
criminal proceedings, "the credibility of witnesses and weight of evidence are determinations
that lie solely with the trier of fact, [which] is free to believe all, part, or none of the
evidence." Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. Ct. 2006). The only
evidence opposing Defendant's guilty verdict is his own self-serving testimony, which the
jury was entitled to, and clearly did, disbelieve. Defendant alleged in his Motion for New
Trial that his testimony outweighed ZS' because ZS had been impeached; however, ZS'
testimony had been rehabilitated (which Defendant has also complained of and which we
addressed supra), and the inculpatory statements Defendant made in his e-mail were also
properly before the jury, which supported ZS' testimony and undermined Defendant's
account.
Defendant also attacks the sufficiency of the evidence supporting the verdict. Def. 's
Statement ~ 10. Here, we again point out that Defendant has not specified the manner in
which the evidence is insufficient. We believe this lack of specificity renders the issue
56
waived on appeal. In order to preserve the issue, it was necessary for Defendant's Rule 1925
Statement to have specified the elements of the offenses that he claims the evidence was
insufficient to support. Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009).
Failure to provide this specificity results in waiver of the claim. Id. To the extent that the
issue is not deemed waived on appeal, viewing the evidence in a light most favorable to the
Commonwealth, we are satisfied that the evidence was sufficient to meet each of the elements
of the offenses of which Defendant was convicted.
7. Ineffective Assistance of Counsel.
Defendant also asserts that his trial counsel was ineffective in various respects, i.e.,
failing to request a continuance in order to schedule a hearing on Defendant's June 23, 2015
Objection to Transcript; failing to "elicit during cross-examination of the Commonwealth's
witnesses that the testimony was falsified," and for "failing to object to the prosecution's
closing remarks that deemed defendant as thinking he was 'the smartest person in the room'
and having an 'unhealthy interest' in children." Def.' s Statement -0-0 11 (a)-(c).
We submit that Defendant's ineffective assistance of counsel claims are not properly
raised at this stage of the litigation, but rather must wait until collateral review. As our
Supreme Court has repeatedly emphasized, Commonwealth v. Grant's "general rule of
deferral to PCRA review remains the pertinent law on the appropriate timing for review of
claims of ineffective assistance of counsel.. .. " Commonwealth v. Holmes, 79 A.3d 562, 563
(Pa. 2013) (citing Grant, 813 A.2d 726 (Pa. 2002». Stated otherwise, the Court held, "we
reaffirm Grant and hold that, absent the circumstances we address below, claims of
ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not
entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be
57
reviewed upon direct appeal." Id. at 576.
The Superior Court summed up the two exceptions to the Grant rule as follows:
First, there may be an extraordinary case where the trial court,
in the exercise of its discretion, determines that a claim (or
claims) of ineffectiveness is both meritorious and apparent
from the record so that immediate consideration or relief is
warranted ... Second, our Supreme Court determined that in
cases where "prolix" claims of ineffectiveness are raised,
unitary review, if permitted at all, should only proceed where
accompanied by a knowing, voluntary and express waiver of
PCRA review.
Commonwealth v. Harris, 114 A.3d 1, 5-6 (Pa. Super. Ct. 2015) (citing Holmes, 79 A.3d at
577-78) (emphasis in Harris) (internal quotations and citations omitted). We do not believe
that this case satisfies either exception. Therefore, we suggest that Defendant's ineffective
assistance of counsel claim should not be entertained on direct review.
RESPECTFULLY SUBMITTED:
~eary,p.J.
Dated: May 25,2016
58