Com. v. Myrick, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAUN MYRICK
Appellant No. 2367 EDA 2013
Appeal from the Judgment of Sentence August 7, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004215-2012
BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 20, 2015
Appellant, Shaun Myrick, appeals his judgment of sentence entered
following his convictions for sexually assaulting his daughter. We affirm.
As we write exclusively for the parties, who are familiar with the
factual context and legal history of this case, we set forth only so much of
the facts and procedural history as is necessary to our analysis.
Myrick sexually assaulted his daughter over a period of years. The
abuse began when she was just ten years old. A jury convicted Myrick of
rape, involuntary deviate sexual intercourse, unlawful contact with a minor,
aggravated indecent assault, and sexual assault. After a hearing, the trial
court determined that Myrick was a sexually violent predator (“SVP”), and
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
Former Justice specially assigned to the Superior Court.
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then sentenced him to an aggregate term of 20 to 40 years’ imprisonment.
This timely appeal followed.
In his first issue presented on appeal, Myrick contends that the
Commonwealth witness Philip Scribano, D.O., the doctor who examined the
victim, testified impermissibly in stating, “the absence of medical injury is
corroboration for the accuracy of the complainant’s accusations.” Appellant’s
Brief, at 3-4 (quoting N.T., Trial, 3/18/13, at 12, 17). Myrick objects that
the use of the word “corroboration” “implies that the exam provided
independent support for her allegations….” Id., at 7.
We are unable to locate in the notes of testimony the quotation Myrick
attributes to Dr. Scribano in his brief. Apart from that glaring problem,
Myrick did not lodge a single objection to Dr. Scribano’s testimony at trial.
Therefore, this claim is waived. See Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.”); Pa.R.E. 103 (stating that an appellant may not predicate a claim
of error on a ruling that admits evidence unless a timely objection, motion to
strike or motion in limine appears of record and states the specific ground of
the objection); Commonwealth v. Parker, 104 A.3d 17, 28 (Pa. Super.
2014).1
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1
In his testimony, Dr. Scribano read a letter he wrote to the victim’s
primary care provider. He stated, in pertinent part, “[h]er exam is normal
today, which neither proves nor disproves a past history of abuse but which
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Myrick next argues that the trial court erred in permitting a portion of
a DHS report prepared by a caseworker to be read to the jury. The portion
he objects to on appeal is a statement the Commonwealth read to the jury
that the “victim gave credible and consistent statements of abuse.” N.T.,
Trial, 3/18/13, at 51.
In his brief, Myrick does not comply with Rule 2119 by providing a
reference to where in the record he preserved this issue. See Pa.R.A.P.
2119(e). An examination of the certified record reveals that Myrick objected
to the introduction of this evidence by arguing that “[i]t’s prejudicial” and
that “it’s for the jury to determine credibility[.]” N.T., 3/15/13, at 143. He
asked that the trial court redact that portion of the report. The trial court
deemed the objected to portion admissible, noting that it would “deal with it
in the jury instructions and make it clear to the jurors that it’s for them to
determine credibility.” Id., at 144.
The “[a]dmission of evidence is a matter within the sound discretion of
the trial court, and will not be reversed absent a showing that the trial court
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(Footnote Continued)
would be consistent with the reported history.” N.T., Trial, 3/18/13, at 12.
Dr. Scribano explained that “[t]he most common physical finding in children
who have disclosed sexual abuse is a normal exam.” Id., at 17. He then
provided a detailed explanation as to why that is. See id., at 17-18. This
was perfectly acceptable expert testimony. See Commonwealth v.
Minerd, 753 A.2d 225, 227 (Pa. 2000) (“Commonwealth may, as part of its
case-in-chief in a sexual assault prosecution, offer the testimony of an
expert that the absence of physical trauma is nevertheless consistent with
the alleged sexual abuse.”).
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clearly abused its discretion.” Commonwealth v. Montalvo, 986 A.2d 84,
94 (Pa. 2009) (citations omitted).
The trial court abused its discretion in permitting the Commonwealth
to read the portion of the DHS caseworker report that the victim gave
credible statements of abuse. The statement acted to improperly bolster the
credibility of the victim. “It is a basic tenant of our judicial system that
issues of credibility are left solely to the jury for resolution….”
Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa. Super. 2007)
(citation omitted). Cf. Commonwealth v. Mendez, 74 A.3d 256, 262 (Pa.
Super. 2014) (“Expert testimony cannot be used to bolster the credibility of
a witness.”).
It was error for the trial court to permit the introduction of the
statement, but we find that the error was harmless. “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 if the record
demonstrates, inter alia, that the error did not prejudice the defendant or
the prejudice was de minimis.” Commonwealth v. Gonzalez, ___ A.3d
___, ___, 2015 WL 252446, *14 (Pa. Super., filed January 21, 2015)
(citation and internal quotation marks omitted).
The comment concerning credibility was a mere fleeting reference in
the lengthy report read to the jury. See N.T., Trial, 3/18/13, at 48-54. The
trial court instructed the jury, repeatedly, that they were the sole judges of
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credibility. See, e.g., N.T., Trial, 3/18/13, at 143, 148. “The law presumes
the jury will follow the instructions of the court.” Commonwealth v.
Eichinger, 108 A.3d 821, 846 (Pa. 2014) (citation omitted). The error was
harmless.
Lastly, in one paragraph, Myrick maintains that a finding that he is an
SVP “must not result from those acts which have just been tried in the case
at bar.” Appellant’s Brief, at 9 (citing 42 Pa.C.S.A. § 9792 and § 9795).
Under Myrick’s reading of the law, the convictions stemming from the sexual
assault of his daughter were immaterial in determining whether he was an
SVP.
There are serious problems with this curious argument. First, it was
not even raised in his Rule 1925(b) statement and, therefore, is waived.
See Commonwealth v. Newman, 84 A.3d 1072, 1078 (Pa. Super. 2014),
appeal denied, 99 A.3d 925 (Pa. 2014). In addition, the two statutory
sections Myrick cites are not even applicable. Section 9792 expired on
December 20, 2012, pursuant to 42 Pa.C.S.A. § 9799.41.2 The legislature
deleted section 9795 back in 2000. See 2000, May 10, P.L. 74, No. 18, § 3.
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2
The Sexual Offender Registration and Notification Act, 42 Pa.C.S.A. §§
9799.10-9799.41, was the statute in effect at the time of the SVP hearing
and sentencing in this case; it became effective on December 20, 2012.
See 2011, Dec. 20, P.L. 446, No. 111, § 12, effective in one year. See also
42 Pa.C.S.A. § 9799.13.
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Most egregiously, this argument contravenes the plain wording of the
statute.
The statute defines an SVP as “an individual convicted of an
[enumerated] offense….” 42 Pa.C.S.A. § 9799.12 (emphasis added).
Myrick’s convictions are enumerated offenses: unlawful contact with minors
(42 Pa.C.S.A. § 9799.14(c)(5)); rape (42 Pa.C.S.A. § 9799.14(d)(2));
involuntary deviate sexual intercourse (42 Pa.C.S.A. § 9799.14(d)(4));
sexual assault (42 Pa.C.S.A. § 9799.14(d)(5)); and aggravated indecent
assault (42 Pa.C.S.A. § 9799.14(d)(7)). It is the conviction that prompts
the assessment by the Sexual Offenders Assessment Board. See 42
Pa.C.S.A. § 9799.24(a) (“After conviction but before sentencing, a court
shall order an individual convicted of a sexually violent offense to be
assessed….”). And the assessment entails “an examination” of the “[f]acts
of the current offense….” 42 Pa.C.S.A. § 9799.24(b)(1)(i)-(vii) (emphasis
added). See also Commonwealth v. Prendes, 97 A.3d 337, 355-359 (Pa.
Super. 2014) (explaining assessment process and adjudication as an SVP).
The convictions in this case are clearly pertinent to the determination
as to whether Myrick was an SVP. Accordingly, Myrick’s argument fails.3
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3
After stating that his sexual assault convictions are immaterial, Myrick
briefly recounts his criminal past and other circumstances, and in a sentence
tacked onto his one-paragraph argument, concludes that the evidence was
insufficient to sustain his SVP designation. See Appellant’s Brief, at 9. We
rely on the trial court’s opinion to explain that the Commonwealth presented
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2015
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(Footnote Continued)
sufficient evidence to sustain the SVP designation. See Trial Court Opinion,
1/21/14, at 15-18.
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