Com. v. Lopez-Vanegas, C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARLOS LOPEZ-VANEGAS :
:
Appellant : No. 3256 EDA 2018
Appeal from the Judgment of Sentence Entered September 28, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000735-2018
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 13, 2020
Carlos Lopez-Vanegas (Appellant) appeals from the judgment of
sentence imposed after a jury convicted him of three counts of rape of a child,
three counts of involuntary deviate sexual intercourse with a child, one count
of aggravated indecent assault of a child, two counts of indecent assault –
complainant less than 13 years of age, one count of corruption of minors, and
one count of endangering the welfare of children.1 We affirm.
Appellant’s convictions arise from the sexual assault of K.D., age 11,
and C.L., age 5. The trial court detailed the facts and procedural history of
this case as follows:
The trial established the following facts. On November 20,
2017, K.D. and C.L. disclosed the sexual abuse to their mutual
grandmother [(Grandmother)]. [N.T., 7/10/18, at 79-80].
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1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), 6301(a)(1)(ii),
4304(a)(1).
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[Grandmother] testified that she has two children, [B.R.] and
[I.R.]. Id. at 75-76. [B.R.] is the mother to three children; in
particular she is K.D.’s mother. Id. at 76. [I.R.] also has three
children, including C.L. Id. at 78. Appellant is the father to
[I.R.]’s children and was living with her and their children at the
time of the abuse.
On November 20, 2017, [Grandmother] was babysitting her
grandchildren and her grandson touched one of her
granddaughters “in the private parts.” Id. at 80. [Grandmother]
reprimanded her grandson. Spontaneously C.L. said, “[w]ell, my
dad touch me in my private parts all the time.” Id. C.L. indicated
to her grandmother that her private parts include her genital area
and her buttocks. Id. at 80-81.
K.D. also came forward to tell her grandmother that Appellant
touched her “in her private parts too, a couple of times.” Id. at
81. K.D. also disclosed that it would happen during sleepovers
when [I.R.] would go to work. Appellant would take her into the
bedroom where he and [I.R.] would sleep. He touched her and
made her take her clothes off. Id. at 82. K.D. was nervous and
was willing to talk more, but didn’t since the other kids were
around. Id. at 84. [Grandmother] relayed to [B.R.] what K.D.
had told her. Id. at 85.
On December 29, 2017, [Grandmother] spoke to K.D. again
about her previous disclosure of sexual abuse. Id. at 85.
[Grandmother] and K.D. were alone and she asked her
granddaughter some questions about their previous conversation.
Id. at 85-86. [Grandmother] told the jury that K.D. became
nervous but told her that, “[a]ctually, it did happen other things.”
[sic] Id. at 86. [Grandmother] asked her for more details and
testified as to K.D.’s response as follows:
he took her to the bedroom and put them in bed; that he
took his clothes off and starting touching her. That he did
put his. [sic] Like she said, his private part in her. And I
ask her if it was just touching her or if he put his penis
inside, and she said yes, he did. Because she said,
“Actually, it did hurt and I tried to scream and he covered
my mouth and he didn’t allow me to scream, so I started
crying.” And he said it was fine, it’s okay, nothing is going
to happen.
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Id. K.D. also told her grandmother that it happened more than
once at [I.R.]’s house. Id. at 88.
[Grandmother] relayed this information to [B.R.]. Id. at 89.
[Grandmother] and [B.R.] took K.D. to the hospital so she could
be evaluated. Id. On December 30, 2017, the Lansdale Borough
Police Department was notified of these allegations, and Detective
Oropeza responded to the hospital. [N.T., 7/11/18 at 131-32].
The following day, on December 31, 2017, [I.R.] was notified of
the allegations involving C.L. Id. at 132-133. A short time after,
[I.R.] and her family moved into the home [Grandmother] shared
with [B.R.] and her children. [N.T., 7/10/18, at 92].
K.D. testified at trial. She was eleven at the time of trial. [N.T.,
7/9/18, at 68.] . . . K.D. told the jury that when she would sleep
over [at] [I.R.]’s house with her cousins, Appellant would wake
her, while [I.R.] was at work and he would take her to the
bedroom where he and [I.R.] slept. Id. at 81-82. There,
Appellant made K.D.[] take her clothes off. Id. at 83. He touched
her vaginal area, and she testified that he would put his fingers,
tongue and penis inside and move them around. Id. at 87-88,
91-93. Appellant also touched her buttocks area and his fingers
and penis would go inside and outside that area moving around.
Id. at 88-89. Appellant used something “squishy” on his penis to
make it hurt less. Id. at 96, 97. To keep K.D. from screaming,
Appellant would put a blanket or a pillow in her mouth. Id. at 95.
Appellant also forced K.D. to put his penis in her mouth and t[old]
her to “suck it.” Id. at 98-99. Appellant did all these things more
than five times. Id. at 102-03. K.D. told the jury how she went
to the hospital after disclosing this sexual abuse. Id. at 106.
On December 30, 2017, K.D. was examined by Amanda
Schwenk, R.N., who is a registered nurse at Grandview Hospital.
[N.T., 7/10/18, at 98-99]. At trial, Ms. Schwenk read from the
triage notes which documented that K.D. requested for both her
mother and grandmother not to be in the room to discuss the
assault. Id. at 101. The only people present during the interview
were Nurse Schwenk and Dr. Patro. Id. at 102.
C.L., who was five at the time of the trial told the jury that
Appellant did a bad thing to her body. [Id. at 12-13]. C.L., using
a cartoon picture of the front and back of a girl, testified that
Appellant did something bad to her vaginal and buttocks area. Id.
at 13-14. It happened more than once. Id. at 14. C.L. was
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hesitant to provide details at trial, saying that she doesn’t want to
say. Id. at 17. C.L. acknowledged that she spoke to Miss Maggie
at Mission Kids about what happened and said that everything she
told her was the truth. Id. at 17-18.
Next, A.L., C.L.’s seven-year-old sister, testified. . . . [A.L.]
admitted that she told Miss Maggie from Mission Kids that she had
seen her father with C.L. in her mom’s room in the same bed. Id.
at 55. At trial[,] she told the jury [that Appellant] had his clothes
on, but reported to Mission Kids that Appellant did not have his
clothes on when she saw him with her sister. Id. at 56. [A.L.]
testified that Appellant told her it was a secret when she saw them
in the bed together and then took her to a playground. Id.
Maggie Sweeney, the Program Manager and forensic
interviewer at Mission Kids Advocacy Center, also testified at trial
on behalf of the Commonwealth. Id. at 109. She was recognized
at trial as an expert in forensic interviewing. Id. at 110. She
explained to the jury that as a forensic interviewer she utilizes
open-ended, non-leading developmentally appropriate questions
of the children because they elicit the most accurate information
from children. Id. at 111-12. On January 9, 2018, she conducted
a forensic interview of K.D., C.L. and A.L. Id. at 113, 115, 117.
A second interview of A.L. was conducted on June 27, 2018, based
on new information. Id. at 117.
[I.R.] was told on December 31, 2017 about the allegations
made against Appellant [] by C.L. [N.T., 7/11/18, at 93]. [I.R.]
asked C.L. directly about it in front of Appellant, who interjected
and said he did nothing. Id.[] [I.R.] and her three children
moved in with [Grandmother], [B.R.] and [B.R.]’s three children.
Id. at 95. C.L. revealed to her mother about the sexual abuse.
Id. at 95-96. A.L. also told her mother that she had a secret with
Appellant, involving touching C.L. Id. at 96-97. After [I.R.] found
all of this out she and her three children moved in with [B.R.]. Id.
at 97. Additionally, the Commonwealth questioned this witness
as to whether she coached or influenced A.L. to change her
statement in the second Mission Kids interview. Id. at 102-03.
* * *
At the conclusion of the four-day trial, Appellant was found
guilty of the aforementioned crimes. On September 28, 2018, a
sentencing hearing was conducted at which both Appellant’s
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father, brother, [and] sister-in-law testified on his behalf. Two
letters of support for Appellant were submitted and read to [the
trial court]. [The trial court] sentenced Appellant to an aggregate
sentence of 48 to 69 years [of] imprisonment.
A timely notice of appeal was filed. Appellant was directed to
file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), which he did.
Trial Court Opinion, 2/4/19, at 1-6 (some citations modified).
On appeal, Appellant presents the following issues for review:
I. Whether the trial court abused its discretion in denying
Appellant’s request for a pre-trial evidentiary hearing to explore
allegations of taint regarding the complaints of sexual abuse made
by the witnesses of tender years?
II. Whether the trial court abused its discretion in precluding
the admission of evidence of contemporaneous allegations of
sexual abuse made by the minor victim K.D. against Appellant’s
two brothers, and evidence of contemporaneous reports to OCY
that L.R., who was a relative and companion of both minor victims,
was also sexually abused by Appellant and Appellant’s two
brothers?
Appellant’s Brief at 4.2
In his first issue, Appellant argues that the trial court abused its
discretion in denying his request for a taint hearing for the child witnesses in
this case. Appellant asserts that he provided the trial court with evidence of
____________________________________________
2 We note that Appellant raised eight issues in his Pa.R.A.P. 1925(b)
statement. We address only those issues that Appellant argues in his
appellate brief, because the issues Appellant has not argued on appeal are
waived. See Pa.R.A.P. 2119(a); see also Commonwealth v. Johnson, 985
A.2d 915, 924 (Pa. 2009) (“where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived”).
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taint relating to the child witnesses’ testimony and consequently, a hearing
was necessary to determine whether they were competent to testify at trial.
“The determination of a witness’s competency rests within the sound
discretion of the trial court.” Commonwealth v. Davis, 939 A.2d 905, 906-
07 (Pa. Super. 2007). As this Court has recently reiterated, “[t]he general
rule in Pennsylvania is that every person is presumed competent to be a
witness.” Commonwealth v. Adams-Smith, 209 A.3d 1011, 1021 (Pa.
Super. 2019) (quoting Commonwealth v. Delbridge, 855 A.2d 27, 39 (Pa.
2003)). In Delbridge, our Supreme Court explained the following regarding
competency hearings:
A competency hearing concerns itself with the minimal capacity of
the witness to communicate, to observe an event and accurately
recall that observation, and to understand the necessity to speak
the truth. A competency hearing is not concerned with credibility.
Credibility involves an assessment of whether . . . what the
witness says is true; this is a question for the fact finder. An
allegation that the [child witness’] memory of the event has been
tainted raises a red flag regarding competency, not credibility.
Where it can be demonstrated that a [witness’] memory has been
affected so that their recall of events may not be dependable,
Pennsylvania law charges the trial court with the responsibility to
investigate the legitimacy of such an allegation.
Delbridge, 855 A.2d at 40.
In child sexual assault cases, taint is an issue that can necessitate a
competency hearing. Id. at 39 (“[T]aint is a legitimate question for
examination in cases involving complaints of sexual abuse made by young
children.”). In Delbridge, our Supreme Court defined taint as “the
implantation of false memories or the distortion of real memories caused by
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interview techniques of law enforcement, social service personnel, and other
interested adults, that are so unduly suggestive and coercive as to infect the
memory of the child, rendering that child incompetent to testify.” Id. at 35.
Allegations of taint necessitate a competency hearing in the following
circumstances:
In order to trigger an investigation of competency on the issue of
taint, the moving party must show some evidence of taint. Once
some evidence of taint is presented, the competency hearing must
be expanded to explore this specific question. During the hearing
the party alleging taint bears the burden of production of evidence
of taint and the burden of persuasion to show taint by clear and
convincing evidence. Pennsylvania has always maintained that
since competency is the presumption, the moving party must
carry the burden of overcoming that presumption.
Adams-Smith, 209 A.3d at 1021 (quoting Delbridge, 855 A.2d at 40).
Additionally,
In analyzing whether a party has met the “some evidence of
taint” standard, the trial court considers the totality of the
circumstances around the child’s allegations. [Delbridge, 855
A.2d] at 41. This Court has identified some of the common
considerations relevant to this analysis as follows:
(1) the age of the child; (2) the existence of a motive hostile
to the defendant on the part of the child’s primary
custodian; (3) the possibility that the child’s primary
custodian is unusually likely to read abuse into normal
interaction; (4) whether the child was subjected to repeated
interviews by various adults in positions of authority; (5)
whether an interested adult was present during the course
of any interviews; and (6) the existence of independent
evidence regarding the interview techniques employed.
Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super.
2006) (citation omitted).
Commonwealth v. Smith, 167 A.3d 782, 790 (Pa. Super. 2017).
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Here, the trial court explained its decision to deny Appellant’s request
for a taint hearing as follows:
In this case, applying the Delbridge factors, this [c]ourt
denied the defense request for a taint hearing because the
defense offer of proof was insufficient and did not meet the
threshold that would entitle him to a taint hearing. [N.T.,
6/25/18, at 17]. There was no evidence of hostile intent or any
reason to plant these suggestions or to distort the memory of the
children, 11 and five years old. Id.
This Court determined that there was not any questioning that
was suggestive. Id. The Mission Kids interviewer used open-
ended, non-suggestive questions. The purpose of the Mission Kids
interview is to see that the child is only interviewed once by law
enforcement people. Id. The techniques that were used during
the Mission Kids interview were open-ended. Id. at 18.
Importantly, the initial disclosures of sexual abuse by the
children were spontaneous. The statements made were largely
consistent. There is no evidence of implanting or distorting
memories. Id.
Nothing presented indicated that the primary custodian would
have been likely to read abuse in the normal situations. Id. In
fact, the initial statements were not made to the victims’
respective mothers.
There were not repeated interviews by various adults in
positions of authority. The nurse, to the extent that was an
interview, was minimal. It was also [the interaction] where K.D.
asked to be alone with the nurse. So there was no interested
adult in the room at the time, or in the Mission Kids interviews.
It is important to note that in defense counsel’s taint argument
he skipped over the spontaneous initial disclosures made on
November 20, 2017. Rather, his argument focused on the
December 29th follow-up conversation in which [Grandmother]
asked K.D. for additional details. Both the fact that
[Grandmother] did not go to police after this initial disclosure goes
to her lack of hostile intent, and the fact that even after the
December 29th conversation [Grandmother] and [B.R.] took K.D.
to the hospital and not the police also go to lack of hostile intent.
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Finally, it is important that [I.R.] was not told about any of the
abuse allegations until December 31, 2017, which was after the
police were involved and the abuse reports by the children were
made to OCY. Clearly she could not have tainted the sexual abuse
allegations and statements made prior to her knowledge.
Trial Court Opinion, 2/4/19, at 10-11.
Based upon our review of the record, including the transcripts of
Appellant’s pre-trial motions hearing and trial, and the parties’ appellate
briefs, we agree with the trial court’s assessment that a taint hearing was not
warranted. The record reveals no evidence indicating the presence of the
factors set forth in Smith and Judd, other than the young age of the children.
As the trial court recognized, the actions of Grandmother, in reporting the
allegations of sexual abuse, and the Mission Kids interviewer, reflect the
absence of those factors, and thus a lack of taint in the child witnesses’
testimony. See id.; see also N.T., 6/25/18, at 17-18.
Furthermore, in his appellate brief, Appellant provides a list of several
facts that he contends demonstrates that he provided the trial court with
“some evidence of taint.” See Appellant’s Brief at 22-27. Specifically,
Appellant points to evidence indicating that: K.D., A.L., and C.L. were young
(ages 11, 7, and 5, respectively) when they testified at trial; [I.R.] and
Appellant had relationship issues (which included accusations of infidelity by
[I.R.] against Appellant); L.R., one of K.D.’s younger siblings, raised
allegations of abuse against Appellant and his brothers that the Office of
Children and Youth determined were unfounded, and C.L. did not mention that
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Appellant’s brothers sexually assaulted her in her Mission Kids interview. See
id. These facts do not provide “some evidence of taint.” See Adams-Smith,
209 A.3d at 1021. As mentioned above, taint is “the implantation of false
memories or the distortion of real memories caused by interview techniques
of law enforcement, social service personnel, and other interested adults, that
are so unduly suggestive and coercive as to infect the memory of the child,
rendering that child incompetent to testify.” Delbridge, 855 A.2d at 35
(emphasis added).
In sum, Appellant cites as evidence of taint certain facts that, at best,
could undermine the child witnesses’ credibility. He does not, however, point
to any evidence that shows any person involved in the case attempted to
implant false memories or distort the real memories of the child witnesses.
Although the facts may ultimately impact witness credibility, they do not bear
upon the objective of a taint hearing – to investigate facts that may show a
witness’ lack of competency to testify. See Delbridge, 855 A.2d at 40.
Therefore, as there is no record evidence of taint, the trial court did not abuse
its discretion in denying Appellant’s request for a taint hearing.
In his second issue, Appellant argues that the trial court abused its
discretion in precluding him from introducing evidence that K.D. raised
allegations of sexual assault against Appellant’s two brothers, and that L.R.
also raised allegations of sexual assault against Appellant and his brothers.
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The trial court denied admission of this evidence on the basis that it was
irrelevant. N.T., 6/25/18, at 32-33.
“Questions concerning the admissibility of evidence are within the sound
discretion of the trial court and its discretion will not be reversed absent a
clear abuse of discretion.” Commonwealth v. Leaner, 202 A.3d 749, 773
(Pa. Super. 2019) (quotation and citation omitted). Generally, “all relevant
evidence, i.e., evidence which tends to make the existence or non-existence
of a material fact more or less probable, is admissible, subject to the
prejudice/probative value weighing which attends all decisions upon
admissibility.” Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007);
see also Pa.R.E. 401. “The court may exclude relevant evidence if 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.
“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.” Pa.R.E. 403 (comment).
In denying Appellant’s evidentiary request, the trial court explained that
it “found the third party abuse allegations not admissible because they were
irrelevant and completely collateral. . . . There was a clear danger of confusion
to the jury and distraction to the jury if these allegations were introduced.”
Trial Court Opinion, 2/4/19, at 15. We agree.
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This Court has explained in sexual assault cases, the Rape Shield Law,
18 Pa.C.S.A. § 3104,3 “does not always preclude evidence the complainant
was a victim of a prior sexual assault, see Commonwealth v. Johnson, []
638 A.2d 940, 942 ([Pa.] 1994), but the proffered evidence must still be
relevant and material under the rules of evidence.” Commonwealth v.
L.N., 787 A.2d 1064, 1069 (Pa. Super. 2001) (emphasis added). As the trial
court recognized, the allegations of sexual assault against Appellant and his
brothers that were not at issue in this case, “did not tend to prove or disprove”
whether Appellant abused K.D. and C.L. See L.N., 787 A.2d at 1069. Instead,
Appellant’s desire to introduce this evidence would have served only to
impeach the victims’ credibility. Witnesses, however, “may not be
contradicted upon a collateral matter[,] i.e., “one which has no relationship to
the matter on trial.” Johnson, 638 A.2d at 942-43.
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3 The statute reads, in pertinent part, as follows:
(a) General rule.--Evidence of specific instances of the alleged
victim’s past sexual conduct, past sexual victimization, allegations
of past sexual victimization, opinion evidence of the alleged
victim’s past sexual conduct, and reputation evidence of the
alleged victim’s past sexual conduct shall not be admissible in
prosecutions of any offense listed in subsection (c) except
evidence of the alleged victim’s past sexual conduct with the
defendant where consent of the alleged victim is at issue and such
evidence is otherwise admissible pursuant to the rules of
evidence.
18 Pa.C.S.A. § 3104(a).
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Finally, given the collateral nature of the accusations, if the trial court
had admitted this testimony at trial, the danger of unfair prejudice would have
outweighed the testimony’s probative value as impeachment evidence. See
Pa.R.E. 403. In sum, the trial court did not abuse its discretion in precluding
the admission of Appellant’s proffered evidence. See Pa.R.E. 401, 403.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/20
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