Com. v. Anderson, L. ( 2023 )

J-S11044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LAMAR ANDERSON :
:
Appellant : No. 687 EDA 2022
Appeal from the Judgment of Sentence Entered September 20, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008690-2018
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 17, 2023
Appellant, Lamar Anderson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his bench
trial convictions for unlawful contact with a minor, corruption of minors,
indecent assault without consent, indecent assault of a person under 16 years
of age, involuntary deviate sexual intercourse (“IDSI”), and endangering the
welfare of a child.1 We affirm.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
[Complainant] testified that she was a friend of [Appellant’s]
daughter, [H.J.]. According to Complainant, the first time
Complainant met [Appellant] was at [Appellant’s] house in
Southwest Philadelphia in July 2018. The first time
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1 18 Pa.C.S.A. §§ 6318(a)(1), 6301(a)(1)(ii), 3126(a)(1), 3126(a)(8),
3123(a)(7), 4304(a)(1), respectively.
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Complainant was at [Appellant’s] home, she stayed two
nights with [H.J.]. During this visit, Complainant, and
[Appellant’s] two daughters slept in the back room.
[Appellant] was in his room the entire time during this visit.
According to Complainant, [Appellant’s] room is part of the
living room and in his room, there is [a] bed, tv, and other
things.
During that same summer, Complainant stayed at
[Appellant’s] home a second time. This time, Complainant
went to [Appellant’s] house with [H.J.] and their friend, M.L.
They went to [Appellant’s] home to spend the night because
they were going to babysit [Appellant’s infant] son.[2]
[Appellant] was expected to be at his house, but he stated
he had to go to work. According to Complainant, [Appellant]
was in and out during the night. He would come in, check
on them and then leave. During this visit, Complainant and
the other girls slept in the back and [Appellant] slept in his
room.
The next morning, Complainant and [M.L.] went to the
supermarket with [Appellant]. [H.J.] did not go to the
supermarket because she was babysitting the baby in
[Appellant’s] room. While at the supermarket, [Appellant]
asked [Complainant] “Do you want daddy to buy you a
coloring book?”[3] Complainant stated she did not say
anything to [Appellant] and just laughed. [Appellant] did
not touch her while at the supermarket. After the
supermarket, [Appellant] and [Complainant and M.L.]
returned to the house, they began putting the food away.
Complainant went into the kitchen by herself, and
[Appellant] came into the kitchen. According to
Complainant, when [Appellant] came into the kitchen, he
picked her up and kissed her. After this happened,
[C]omplainant went into the room with [H.J. and M.L.]
Complainant stated she was in the kitchen because they
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2 Complainant testified she babysat only the infant son, but M.L. testified that
the girls babysat two young children. (See N.T. Trial, 1/29/20, at 61, 82-83).
3M.L. testified that she overheard the coloring book comment. (Id. at 86).
M.L. stated that Appellant asked Complainant to go to the supermarket alone,
but Complainant asked M.L. to accompany her. (Id. at 85).
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were making breakfast. … [Appellant] wanted Complainant
to go into the kitchen by herself, but Complainant stated
[Appellant] was acting weird and [she] did not want to be
alone with him.[4] Further, while in the kitchen, [Appellant]
pressed his “front private part” against Complainant’s butt.
Complainant also testified that [the day before Appellant
kissed] her in the kitchen, [Appellant] had kissed her when
she went into his room to get lotion. Specifically,
[Appellant] had picked her up by her thighs and kissed her
on the lips.[5] Complainant did not feel comfortable telling
[H.J.] about these occurrences because [Appellant] was her
dad. However, Complainant did tell M.L. [M.L. testified at
trial that she saw Appellant press up against Complainant in
the kitchen.]
Later that same day, another incident occurred between
Complainant and [Appellant]. According to Complainant,
she took [Appellant’s] baby from [H.J.] and went into the
back room where she and the other girls were sleeping. She
started taking pictures of her and the baby and sent them
to her mom. While she was in the room, [Appellant] entered
the room. Complainant testified that [Appellant] was
talking to her and the baby. Complainant was laying down
on the bed while this was happening. Next, [Appellant] got
down on his knees. He moved her shorts and underwear to
the side with his fingers and said “say yes or no.” Next,
[Appellant] started sucking and licking on her vagina.
[Appellant] stopped when he heard M.L. coming.
Following the last incident with [Appellant], Complainant
told M.L. [M.L. testified that when Complainant disclosed
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4 Specifically, Complainant described Appellant’s “weird” behavior as being
affectionate, and Complainant also indicated that Appellant had previously
showed her a pornographic video. (Id. at 28). Complainant’s testimony
concerning the pornographic video violated a prior ruling by a different jurist
which prohibited any reference to the pornographic video. After Complainant
mentioned the pornographic video, the defense objected and requested a
mistrial. The trial court denied the motion for a mistrial and instead, struck
the statement from the record. (Id.)
5This testimony was inconsistent with Complainant’s earlier statement that
nothing unusual had happened the night before. (Id. at 23, 30).
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the events, Complainant looked shocked. M.L. suggested
leaving but Complainant wanted to stay with H.J. M.L. left
Appellant’s house, but Complainant stayed for ten hours.]
Additionally, Complainant told [H.J.] what happened, and
[H.J.] called her mom to pick them up. After being picked
up, Complainant told multiple people what happened.
Complainant’s mother called the police,[6] and after making
a police report and speaking with the SVU, [Appellant] was
arrested. [After her interview at SVU, Complainant went to
the hospital to be examined. She felt uncomfortable, so the
medical staff did not finish the exam and did not get any
DNA samples.]
(Trial Court Opinion, filed 8/29/22, at 1-2) (record citations omitted).
On January 29, 2020, the court convicted Appellant of the above-
mentioned offenses. The court sentenced Appellant on September 20, 2021,
to an aggregate term of five to ten years’ incarceration followed by three years
of probation. Appellant timely filed a post-sentence motion on September 30,
2021, which was denied by operation of law on February 1, 2022. Appellant
timely filed a notice of appeal on March 1, 2022. Appellant filed a voluntary
Pa.R.A.P. 1925(b) statement of errors complained of on appeal on June 17,
2022.
Appellant raises the following issues for our review:
Is the verdict of guilty with respect to all charges against
the weight of the evidence and so contrary to the evidence
that it shocks one’s sense of justice in light of the evidence
presented at trial?
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6 The officer wrote in his report that Appellant licked Complainant’s vagina
twice, once the first night in the kitchen and once in Appellant’s room. This
differed from Complainant’s testimony at trial, during which Complainant
stated that the only time Appellant performed oral sex on her was in
Appellant’s bedroom. (Id. at 127).
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Did the trial court abuse its discretion when it denied
[Appellant’s] motion for a mistrial when [C]omplainant
testified that [Appellant] previously showed her sexually
explicit videos in direct contravention of a court order in
limine which held such testimony to be inadmissible?
(Appellant’s Brief at 7).
In his first issue, Appellant argues that his convictions are based solely
on Complainant’s testimony, which lacked any corroborating evidence or
testimony. Specifically, Appellant asserts that Complainant refused the
medical examination despite medical personnel’s efforts. Appellant insists it
is “illogical” that no one witnessed the alleged assault, which Complainant said
occurred during the day when other people were in the home. Appellant
emphasizes that Complainant possessed her cellphone throughout the whole
stay at Appellant’s home, but she did not text or call anyone for help after the
alleged assault. Appellant further highlights that Complainant’s text message
to her mother of a picture of Appellant’s infant child with Complainant after
the alleged assault is inconsistent with Complainant having been assaulted.
Appellant maintains that M.L. offered Complainant a ride home after the
alleged assault, but Complainant chose to stay at Appellant’s house for ten
hours, which defies common sense to leave the house if an assault had taken
place. Appellant also emphasizes that Complainant acted normally throughout
the stay at Appellant’s home, despite the alleged assault.
Additionally, Appellant points to various inconsistences in Complainant’s
testimony, highlighting: (1) Complainant’s statement that nothing unusual
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happened the first night compared to her subsequent statement that Appellant
kissed her when she went to get lotion; (2) Complainant’s testimony that she
only babysat Appellant’s infant child, which contradicts M.L.’s testimony that
the girls were babysitting two young children; and (3) Complainant’s
testimony that Appellant licked her vagina once, which contradicts the police
report statement that Appellant also licked her vagina on another occasion.
Appellant concludes the guilty verdicts were against the weight of the
evidence, and this Court must grant Appellant a new trial. We disagree.
In reviewing a challenge to the weight of the evidence, our standard of
review is as follows:
The weight of the evidence is exclusively for the finder
of the fact who is free to believe all, part or none of
the evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the… verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellant court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
Instantly, the trial court reasoned:
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[Appellant’s] argument is mainly based on the credibility of
[Complainant]. It is within [the c]ourt’s discretion to believe
all, part or none of the evidence and to determine the
credibility of witnesses. [The c]ourt found [C]omplainant to
be a credible witness. Specifically, [the c]ourt stated “Now,
as far as listening to [C]omplainant testify, there are things
she wasn’t—that weren’t a hundred percent accurate. They
weren’t things that really related to what actually allegedly
happened to her.” [N.T. Trial at 170.] Additionally, [the
c]ourt has reviewed the entire record and [the c]ourt
concludes that the verdict was not so contrary to the
evidence as to shock one’s sense of justice. Contrary to
[Appellant’s] argument, the evidence of this case was
compelling and supports [this c]ourt’s verdict.
(Trial Court Opinion at 8). We agree with the court’s analysis.
Here, it was within the trial court’s discretion to determine the credibility
of Complainant’s testimony. See Champney, supra. The court expressly
noted that any inconsistencies in Complainant’s testimony were not critical to
Complainant’s description of the assault that occurred. See Commonwealth
v. Fuentes, 272 A.3d 511, 519 (Pa.Super. 2022) (holding victim’s conflicting
testimony regarding assault does not rise to level of “shocking the conscience
of the court” given victim’s overarching ability to provide salient facts relevant
to sexual assault she had experienced). Additionally, the court heard
testimony regarding Complainant’s actions and behavior after the alleged
assault, and still deemed Complainant’s testimony credible. Further,
Complainant testified that she was uncomfortable completing the medical
examination, which was why the Commonwealth lacked DNA evidence in this
case. We will not substitute our judgment for the trial court as fact finder.
See Champney, supra. On this record, the verdict is not so contrary to the
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evidence as to shock one’s sense of justice. See id. Therefore, Appellant’s
first issue on appeal merits no relief.
In his second issue, Appellant argues the court abused its discretion
when it denied Appellant’s motion for a mistrial. Appellant contends that
Complainant’s reference to Appellant having shown her a pornographic video
directly violated the prior ruling on Appellant’s motion in limine seeking to
exclude such testimony. Appellant asserts that Complainant’s mention of
Appellant’s prior bad acts prejudiced the judge as fact finder. Appellant
concludes the denial of a mistrial was improper, and this Court must grant a
new trial. We disagree.
In reviewing a challenge to denial of a mistrial, our standard of review
is as follows:
A motion for a mistrial is within the discretion of the trial
court. A mistrial upon motion of one of the parties is
required only when an incident is of such a nature that its
unavoidable effect is to deprive the appellant of a fair and
impartial trial. It is within the trial court’s discretion to
determine whether a defendant was prejudiced by the
incident that is the basis of a motion for a mistrial. On
appeal, our standard of review is whether the trial court
abused that discretion.
Commonwealth v. Cox, 231 A.3d 1011, 1018 (Pa.Super. 2020) (quoting
Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003)). Further,
“not every arguably improper reference to prior criminal activity requires the
grant of a mistrial.” Commonwealth v. Timer, 609 A.2d 572, 576
(Pa.Super. 1992).
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We observe that “trial judges sitting as fact finders in criminal cases are
presumed to ignore prejudicial evidence in reaching a verdict.”
Commonwealth v. Dent, 837 A.2d 571, 582 (Pa.Super. 2003), appeal
denied, 581 Pa. 671, 863 A.2d 1143 (2004) (quoting Commonwealth v.
Irwin, 579 A.2d 955, 957 (Pa.Super. 1990), appeal denied, 527 Pa. 592, 588
A.2d 913 (1991)). “The trial court, sitting without a jury and having sustained
the objection, will not be presumed to have given the passing reference any
weight whatsoever.” Timer, supra.Instantly, the trial court explained:
There is no evidence that a mistrial was manifestly
necessary and that the denial of the motion for a mistrial
deprived [A]ppellant of a fair and impartial trial. At the
[m]otion in [l]imine hearing, [another jurist] instructed the
Commonwealth to instruct its witnesses to not testify about
the video. [See N.T. Trial at 29]. At trial, the witness made
a reference to a porn video that was shown to her by
[Appellant].
At trial, the direct examination went as follows:
Q: How come you didn’t want to be in the kitchen alone with
him?
A: Because he was acting weird.
Q: What do you mean by weird?
A: Affectionate.
Q: How was he [being] affectionate towards you?
A: Because before he would like—before, like the first time
we went over there, he was showing us like a sex video.
[Id. at 28].
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The defense moved for a mistrial. [The c]ourt overruled the
objection. [The c]ourt stated “If there were a jury, I would
give them a curative instruction. Obviously, I’m a Judge
and I’m going to ignore that because obviously, I am
capable of ignoring it. Whether a jury could or not, I don’t
know. In this case, since it’s only related to me, I’m going
to strike it, and I’m going to overrule your request for a
mistrial.” [Id. at 29]. [The c]ourt explicitly stated that it
would ignore that part of the testimony and strike it from
the record. Based on the circumstances surrounding the
testimony and [the c]ourt’s action, [the c]ourt’s actions did
not prejudice or deprive [A]ppellant of a fair trial.
(Trial Court Opinion at 5-6). We agree with the court’s analysis.
Here, it was within the trial court’s discretion to deny the motion for a
mistrial. See Cox, supra. The court expressly noted that Complainant’s
improper reference to the pornographic video did not prejudice the judge as
fact finder, and we presume the trial judge did not give the improper reference
any weight. See Dent, supra; Timer, supra. Therefore, Appellant’s second
issue on appeal merits no relief. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2023
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