Com. v. Flood, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT FLOOD :
:
Appellant : No. 2274 EDA 2020
Appeal from the Judgment of Sentence Entered June 17, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002559-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 12, 2021
Appellant, Robert Flood, appeals from the judgment of sentence of 8
years and 3 months to 22 years’ incarceration followed by 5 years’ probation,
imposed after his convictions of multiple counts of institutional sexual assault
of a minor, unlawful contact with a minor, corruption of minors, and
endangering the welfare of children.1 After careful review, we affirm.
This case arises out of sexual assaults in 2017 and early 2018 on a 16-
year-old boy (Minor 1) and two 14-year-old boys (Minor 2 and Minor 3) at
Devereux Behavioral Health (Devereux), a residential facility that provides
mental health and behavioral treatment to boys who are placed there either
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3124.2(a.1), 6318(a)(1), 6301(a)(1)(ii), and 4304(a)(1),
respectively.
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by court order or by their families. Appellant was employed by Devereux at
the time and supervised all three victims. In 2018, Appellant was charged
with numerous counts of institutional sexual assault of a minor, unlawful
contact with a minor, corruption of minors, endangering the welfare of
children, and other sexual offenses.
Appellant’s trial was scheduled to begin on September 3, 2019. The
only charges against Appellant with respect to Minor 3 concerned his
interactions with Minor 3 while Minor 3 was at Devereux. On August 30, 2019,
four days before the start of trial, the Commonwealth filed a motion pursuant
to Pa.R.E. 404(b)(2) to allow Minor 3 to testify to sexual incidents at a party
to which Appellant took him after he left Devereux that were not acts on which
the charges against Appellant were based. The Commonwealth had first
learned of these sexual incidents on August 29, 2019, when prosecutors were
meeting with Minor 3 to prepare for trial and Minor 3 revealed this information
for the first time. N.T., 9/3/19, at 3-4; Commonwealth’s Pa.R.E. 404(b)
Motion at 2-3. Appellant opposed the motion to permit this testimony. The
trial court granted the Commonwealth’s motion, but also asked Appellant’s
counsel if he needed more time to prepare for trial in light of the new evidence.
Id. at 15-16. Counsel for Appellant stated that he was ready to proceed with
trial. Id. at 16.
Minor 1, Minor 2, and Minor 3 all testified at trial. Minor 1 testified that
he arrived at Devereux on November 1, 2017, and that he and Minor 2 were
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initially roommates. N.T., 9/4/19, at 31-32. Minor 1 testified that Appellant
was a Devereux staff member who supervised him and escorted him between
buildings on the campus. Id. at 36-38, 45. He further testified that early in
his stay at Devereux, Appellant engaged in play fighting with him, Minor 2 and
other residents in which Appellant would touch their genitals over their
clothes. Id. at 48-49. Minor 1 testified that in December 2017, Appellant
spoke to him about having a “threesome” with a woman, showed him a video
on Appellant’s phone of Appellant and the woman having sex, and had Minor
1 take photos of his genitals on Appellant’s phone to show to the woman. Id.
at 55-62. Minor 1 also testified that Appellant told him that Minor 3, whom
Minor 1 did not know, had sex with this woman. Id. at 75-76. Minor 1 testified
that later that day Appellant came into the shower stall when Minor 1 was
showering, grabbed Minor 1’s penis, and had Minor 1 take another photo of
his genitals on Appellant’s cell phone. Id. at 62-64. Minor 1 testified that
approximately a week later, Appellant performed oral sex on Minor 1 in a
classroom, saying that the woman wanted to see them having oral sex, and
subsequently, on other occasions, performed oral sex on Minor 1 in a closet
in the middle school gym, in the high school gym, in Minor 1’s room, and in a
walk-in closet of the room of Minor 2, who was no longer Minor 1’s roommate.
Id. at 64-74. Minor 1 also testified that on one occasion Appellant performed
oral sex on Minor 2 in his presence while rubbing Minor 1’s penis with his hand
and then performed oral sex on Minor 1 while rubbing Minor 2’s penis. Id. at
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76-80. Minor 1 testified that he reported Appellant’s conduct to a Devereux
supervisor in late February 2018. Id. at 82-87, 110, 121.
Minor 3 testified that he was at Devereux from June 22, 2016 to August
24, 2017 and that from March 2017 on Appellant was a staff member who
worked with him. N.T., 9/4/19, at 138-41. Minor 3 testified that on one
occasion while he was at Devereux, Appellant talked with Minor 3 about having
had sex with a woman and grabbed Minor 3’s penis over his clothes. Id. at
143-44, 161. Minor 3 testified that on another occasion, Appellant came in
the shower room and touched Minor 3’s stomach and penis over his clothes.
Id. at 144-45, 161. Minor 3 testified that after he left Devereux, Appellant
stayed in contact with him and that Appellant took him to a party
approximately a month and one half after he left Devereux. Id. at 147-49.
Minor 3 testified that at the party, a girl performed oral sex on him, that he
had anal sex with her while she performed oral sex on Appellant, and that
Appellant performed oral sex on him. Id. at 149-51, 156.
Minor 2 testified that he was at Devereux for six months when he was
14 years old and that Minor 1 was his roommate. N.T., 9/4/19, at 189, 191-
92. Minor 2 testified that Appellant was a staff member who supervised him
at Devereux. Id. at 189-91. Minor 2 testified that in a classroom after school
hours, Appellant showed him and Minor 1 a video of a naked girl on his phone
and said that they should go see the girl to have sex. Id. at 193-98. Minor
2 testified that after showing him the video, Appellant touched Minor’s 2’s
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penis and Minor 1’s penis under their clothes. Id. at 198-99. Minor 2 testified
that later, on more than one occasion, Appellant rubbed Minor 2’s penis and
put his mouth on Minor 2’s penis and performed oral sex on him. Id. at 199-
201, 210-11. Minor 2 testified that he could not say how many times this
happened, but that it occurred in the walk-in closet of Minor 2’s room and in
a classroom and that it happened every couple of days. Id. at 199-204.
The Commonwealth also called a number of other witness, including
Appellant’s supervisor at Devereux, a Devereux supervisor who was a co-
worker of Appellant when he first worked at Devereux, and three police
officers who investigated the charges. Appellant’s supervisor testified that
Appellant was a residential counselor whose responsibilities included keeping
the residents on their routine, monitoring their behavior, and citing residents
for rule violations. N.T., 9/4/19, at 221, 225-28. The supervisor testified that
Minor 1, Minor 2, and Minor 3 were residents with whom Appellant spent more
time than other residents. Id. at 221-24. The supervisor also testified that
Devereux staff were prohibited from having sexual contact with residents,
from being alone with students in their bedrooms, and from having contact
with residents after they are discharged from Devereux, and that students
and staff were prohibited from being in classrooms when school was not in
session. Id. at 230-31, 237. The supervisor testified that there were no
surveillance cameras in the residents’ rooms or the classrooms and that
people at Devereux were aware of which places did not have cameras. Id. at
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231-33. The supervisor testified that Minor 1 and Minor 2 reported Appellant’s
sex acts with them on February 22, 2018 and that he directed Appellant to
leave Devereux that night. Id. at 228-29, 234-37.
The other Devereux supervisor testified that Appellant worked
supervising and mentoring Devereux residents and escorting them on the
campus. N.T., 9/5/19, at 9-10. This witness testified that Appellant had a
close father or big brother relationship with Minor 1 and that Appellant worked
with Minor 2 counseling him and talking to him when Minor 2 had problems
with other residents. Id. at 27-28. She further testified that Minor 1 and
Minor 2 reported Appellant’s sex acts with them on February 22, 2018. Id. at
10-13, 19-23.
A police officer who executed search warrants for evidence testified that
the footage obtained from the Devereux middle school gym surveillance
camera showed nothing and that DNA testing with respect to Minor 1 was
negative. N.T., 9/5/19, at 61-66, 73. This officer also testified that he did not
see any communications between Appellant and Minor 1, Minor 2, or Minor 3
in the results from a search warrant for Appellant’s Facebook communications.
Id. at 68-69, 78-79. This officer testified that a search warrant was issued
for Appellant’s iPhone, but that police were unable to obtain that phone. Id.
at 83-89. Another police officer, who had searched the Facebook records that
the police obtained, testified that he found evidence of Facebook Messenger
contact between Appellant and Minor 3 in the Facebook records, but that the
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Facebook records did not show the content of these communications. Id. at
107-08.
A police forensic analyst called by Appellant testified that he examined
a laptop, tablet, and other electronic devices, including cell phones seized from
Appellant’s home, and found nothing relating to the charges against Appellant.
N.T., 9/5/19, at 119-21. He testified, however, that nothing on the laptop
was within the time period covered by the search warrant, that he was unable
to unlock the tablet, and some of cell phones were broken or damaged. Id.
at 120-22. The police forensic analyst also testified that he examined a cell
phone provided by Appellant during trial and that the earliest date of any of
the data stored on that phone was March 3, 2018. Id. at 122-25.
Appellant testified in his own defense. Appellant testified that he was
employed by Devereux as a direct support professional or behavioral specialist
from March 2017 until February 28, 2018 and that he worked with Minor 1,
Minor 2, and Minor 3. N.T., 9/5/19, at 129-30, 139-41. Appellant denied that
he had any sexual contact with Minor 1, Minor 2, or Minor 3 and denied that
he ever showed any of them pictures of a naked woman or videos of anyone
having sex with a woman. Id. at 131-32. Appellant testified that he did have
contact with Minor 3 and agreed to mentor him after Minor 3 left Devereux at
the request of Minor 3’s mother and admitted that this was a violation of
Devereux’s policy. Id. at 138-39, 149. Appellant denied that he ever took
Minor 3 to any party. Id. at 152.
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On rebuttal, the police officer who had searched the Facebook records
testified that he found a message sent by Appellant on March 5, 2018 in which
Appellant stated “iPhone fell in the snow Friday and went dead. Have to get a
new phone.” N.T., 9/5/19, at 187.
On September 6, 2019, Appellant was convicted by a jury of 11 counts
of institutional sexual assault of a minor, 11 counts of unlawful contact with a
minor, 3 counts of corruption of minors, and 3 counts of endangering the
welfare of children, and was acquitted of the remaining charge that was
submitted to the jury, involuntary deviate sexual intercourse. N.T., 9/6/19,
at 4-9; Verdict Slip. On June 17, 2020, the trial court sentenced Appellant to
consecutive terms of 9 to 24 months’ incarceration on each count of
institutional sexual assault of a minor and terms of 9 to 24 months’
incarceration on each count of unlawful contact with a minor to run
consecutive to each other but concurrently with the institutional sexual assault
of a minor sentences. N.T., 6/17/20, at 25-26; Sentencing Sheet at 1-6. On
each of the corruption of minors counts and endangering the welfare of
children counts, the trial court sentenced Appellant to 5 years’ probation to
run concurrently with respect to each other and consecutive to the sentences
for institutional sexual assault of a minor and unlawful contact with a minor,
resulting in an aggregate sentence of 8 years and 3 months to 22 years’
incarceration followed by 5 years’ probation. N.T., 6/17/20, at 26; Sentencing
Sheet at 6-7.
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Appellant filed a post-sentence motion in which he sought a judgment
of acquittal on insufficiency of the evidence grounds and a new trial on the
ground that the jury’s verdict was against the weight of the evidence. While
this post-sentence motion was pending, Appellant also filed a supplemental
post-sentence motion seeking a new trial based on after-discovered evidence
of a witness who worked at Devereux who would testify that there was a
atmosphere of false abuse allegations at Devereux. Supplemental Post-
Sentence Motion at 1-2. On October 26, 2020, the trial court denied
Appellant’s post-sentence and supplemental post-sentence motions. Trial
Court Opinion and Order, 10/26/20. This timely appeal followed.
Appellant presents the following four issues for our review: 1) whether
the trial court erred in admitting evidence of other sexual acts with respect to
Minor 3; 2) whether the evidence at trial was sufficient to support the jury’s
verdict; 3) whether the jury’s verdict was against the weight of the evidence;
and 4) whether the trial court erred in denying Appellant’s motion for a new
trial based on after-discovered evidence.2 We address Appellant’s second
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2 Appellant’s brief, in violation of Rules 2111(a)(4) and 2116 of the
Pennsylvania Rules of Appellate Procedure, does not contain a statement of
questions involved. His brief, however, in its summary of argument and
argument sections clearly identifies these four issues as the issues that he is
raising and the failure to comply with Rules 2111(a)(4) and 2116 does not
impede our review or the Commonwealth’s ability to respond. We therefore
will not quash the appeal for failure to comply with the Rules of Appellate
Procedure and we address Appellant’s issues on the merits. Werner v.
Werner, 149 A.3d 338, 341 (Pa. Super. 2016).
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issue first, as it would, if completely successful, preclude a retrial, followed by
his third issue, first issue and fourth issue, all of which seek a new trial.
Our standard of review in a challenge to the sufficiency of the evidence
is well-settled:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. … Finally, the finder of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Brockman, 167 A.3d 29, 38 (Pa. Super. 2017) (quoting
Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014)).
Appellant does not contend that the evidence at trial, if found credible
by the jury, was insufficient to prove the elements of any of the crimes of
which he was convicted, institutional sexual assault of a minor, unlawful
contact with a minor, corruption of minors, and endangering the welfare of
children. Rather, Appellant argues that the evidence was insufficient because
the testimony of Minor 1, Minor 2, and Minor 3 was inconsistent, was
unsupported by any physical evidence and was not credible.
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Such arguments do not raise a valid challenge to the sufficiency of the
evidence. Sufficiency of the evidence review does not include an assessment
of the credibility of the testimony offered by the Commonwealth.
Commonwealth v. Crosley, 180 A.3d 761, 768 n.2 (Pa. Super. 2018);
Commonwealth v. Wilson, 825 A.2d 710, 713 (Pa. Super. 2003).
Challenges to the credibility of witnesses are challenges only to the weight of
the evidence, not its sufficiency. Commonwealth v. Kinney, 157 A.3d 968,
971-72 (Pa. Super. 2017); Commonwealth v. Samuel, 102 A.3d 1001, 1005
(Pa. Super. 2014).
While testimony that contradicts undisputed physical facts or the laws
of nature may be found insufficient to support a conviction, Commonwealth
v. Widmer, 744 A.2d 745, 751 (Pa. 2000), nothing in the testimony of Minor
1, Minor 2, or Minor 3 was physically impossible or irreconcilable with any
undisputed facts.3 At most, their testimony was not corroborated by video
recordings or other physical evidence. That, however, cannot make their
testimony insufficient to support Appellant’s convictions. Testimony of a
single witness, even if uncorroborated, can constitute sufficient evidence by
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3 The fact that Appellant testified that he had tattoos on his body, N.T., 9/5/19,
at 132-35, and that Minor 3 testified that did not notice any marks on
Appellant at the party to which he took Minor 3, N.T., 9/4/19, at 164, does
not make Minor 3’s testimony irreconcilable with any physical evidence or
undisputed fact. The only evidence that Appellant had tattoos before that
incident was Appellant’s own testimony, which the jury was not required to
find credible. In addition, Minor 3 testified that Appellant had his pants down,
but was not naked at the party. N.T., 9/4/19, at 164.
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itself to support a conviction. Commonwealth v. Gilliam, 249 A.3d 257,
268 (Pa. Super. 2021); Crosley, 180 A.3d at 768.
Appellant does briefly also argue that there was insufficient evidence “as
to the number of instances of abuse involving Minor One and Minor Three”
and that therefore “there is no basis for the number of counts of which
Defendant was convicted.” Appellant’s Brief at 44. This is a proper challenge
to the sufficiency of the evidence, but fails on the merits. Appellant was
convicted of five counts of institutional sexual assault of a minor, five counts
of unlawful contact with a minor, one count of corruption of minors and one
count of endangering the welfare of children with respect to Minor 1. N.T.,
9/6/19, at 4-6; Verdict Slip at 1-2. Minor 1 clearly testified to more than five
separate sexual assaults, as he testified that Appellant assaulted him at least
six different locations on the Devereux campus. N.T., 9/4/19, at 62-74. Minor
3 testified to two separate assaults while he was at Devereux. Id. at 143-45.
Appellant, however, was convicted of only one count of each offense with
respect to Minor 3. N.T., 9/6/19, at 6; Verdict Slip at 2.
Appellant’s argument that the verdict must be set aside as against the
weight of the evidence likewise fails. A new trial may be granted on the
ground that the verdict is against the weight of the evidence only where the
evidence at trial was so weak or the verdict was so contrary to the evidence
that the verdict shocks the conscience of the trial court. Gilliam, 249 A.3d at
269-70; Antidormi, 84 A.3d at 758. Our review of the denial of a motion for
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a new trial based on weight of the evidence is limited. We review whether the
trial court abused its discretion in concluding that the verdict was not against
the weight of the evidence, not whether the verdict, in this Court’s opinion,
was against the weight of the evidence. Commonwealth v. Clemons, 200
A.3d 441, 463-64 (Pa. 2019).
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge …. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence.
Antidormi, 84 A.3d at 758 (quoting Commonwealth v. Clay, 64 A.3d 1049,
(Pa. 2013)) (brackets omitted).
Here, the trial court concluded:
The evidence of record does not support Defendant’s argument
that the verdict is so contrary to the evidence as to shock one’s
sense of justice and make an award of a new trial imperative. The
testimony of the three victims shows Defendant engaged in sexual
conduct with each of them while they resided at Devereux. All
three victims provided specific testimony regarding the sexual
acts performed upon them by Defendant. The testimony shows
that these acts took place at Devereux in places w[h]ere most
residents as well as staff members knew there were no
surveillance cameras. The evidence of record further supports the
victims’ testimony that they were shown sexually explicit videos
and Defendant took sexually explicit photos of the victims. It is up
to the jury to resolve any conflict or inconsistencies within the
testimony. The jury was entitled to believe the testimony offered
by the victims and render a decision based upon that testimony.
Trial Court Opinion and Order, 10/26/20, at 8. The record supports the trial
court’s analysis. Accordingly, the trial court did not abuse its discretion in
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denying Appellant’s post-sentence motion for a new trial on weight of the
evidence grounds.
Neither of Appellant’s remaining issues merits relief. In the first of these
issues, Appellant argues that the trial court erred in permitting Minor 3 to
testify to sexual incidents that occurred at the party outside of Devereux that
were not the basis of any of the charges against Appellant because this
constituted evidence of other acts that was inadmissible under Pa.R.E. 404(b).
We may reverse a trial court ruling on the admissibility of evidence only where
it is shown that the trial court abused its discretion. Gilliam, 249 A.3d at
271; Commonwealth v. Akhmedov, 216 A.3d 307, 316 (Pa. Super. 2019)
(en banc); Commonwealth v. Gad, 190 A.3d 600, 603 (Pa. Super. 2018).
An appellate court will not find an abuse of discretion “based on a
mere error of judgment, but rather ... where the [trial] court has
reached a conclusion which overrides or misapplies the law, or
where the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will.” Importantly, an
appellate court should not find that a trial court abused its
discretion merely because the appellate court disagrees with the
trial court’s conclusion.
Commonwealth v. Gill, 206 A.3d 459, 466-67 (Pa. 2019) (quoting
Commonwealth v. Eichinger, 915 A.2d 1122 (Pa. 2007)) (ellipsis and
brackets in original, citations omitted).
Pennsylvania Rule of Evidence 404(b) provides:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
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(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b). For evidence of other acts to be admissible under Rule
404(b)(2), there must be a close factual nexus between the other acts and
the crime or crimes with which the defendant is charged. Gilliam, 249 A.3d
at 272; Akhmedov, 216 A.3d at 316. In determining whether the value of
the evidence outweighs the potential for unfair prejudice, the court may
consider whether the possible prejudicial effect can be reduced by a cautionary
jury instruction. Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007);
Gilliam, 249 A.3d at 272.
The Commonwealth sought to admit Minor 3’s testimony concerning sex
acts at the party to show a common plan of using sex with a woman as an
enticement to obtain the other victims’ acquiescence in his sexual acts with
them, to corroborate Minor 1’s testimony that Appellant told him that Minor 3
had had sex with the woman, and to prove that Appellant was acting with
sexual intent in his conduct with Minor 3 at Devereux. N.T., 9/3/19, at 5-10;
Commonwealth’s Pa.R.E. 404(b) Motion at 5-14. The trial court found that
Minor 3’s testimony concerning the sex acts at the party was relevant for these
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permissible purposes. N.T., 9/3/19, at 15-16; Trial Court Opinion and Order,
10/26/20, at 6-7.
This determination is supported by the record. Both Minor 1 and Minor
2 testified that Appellant in his early sexual approaches told them that they
could have sex with a woman that he showed them in video on his phone.
N.T., 9/4/19, at 55-64, 195-99. Minor 1 also testified that Appellant talked
about having a “threesome” with the woman and told him that Minor 3 had
sex with the woman. Id. at 56-58, 75-76. Minor 3’s testimony that he had
sex with a woman at a party to which Appellant took him and that he and
Appellant had sex with the woman at the same time was thus relevant both
to show Appellant’s pattern of using sex with a woman as an enticement and
to corroborate Minor 1’s testimony.
In addition, Minor 3’s testimony that Appellant performed oral sex on
him at the party was relevant to prove Appellant’s intent with respect to the
assaults on Minor 3. The conduct with respect to Minor 3 on which the charge
institutional sexual assault of a minor was based was Appellant’s touching of
Minor 3’s genitals at Devereux. For such conduct to constitute institutional
sexual assault, the Commonwealth was required to prove that Appellant acted
with intent to arouse or gratify sexual desire. 18 Pa.C.S. § 3124.2(a.1)
(defining institutional sexual assault of a minor as engaging “in sexual
intercourse, deviate sexual intercourse or indecent contact with an inmate,
detainee, patient or resident who is under 18 years of age”); 18 Pa.C.S. §
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3101 (defining “indecent contact” as “[a]ny touching of the sexual or other
intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person”). The fact that Appellant later performed oral sex on
Minor 3 is relevant and admissible to show that his intent in touching Minor
3’s genitals was sexual arousal or gratification. See Commonwealth v.
Wattley, 880 A.2d 682, 685-88 (Pa. Super. 2005) (evidence of other
subsequent sexual assaults on same victim admissible under Rule 404(b)(2)
to prove the defendant’s intent), appeal dismissed as improvidently
granted, 924 A.2d 1203 (Pa. 2007).
There was also a close factual nexus between the sex acts at the party
and the crimes with which Appellant was charged. The acts at the party
involved one of the same victims, Minor 3, not an incident with a third party,
and were the subject of a conversation with another victim, Minor 1, in which
Appellant was enticing that victim to engage in sex acts with him. The acts
at the party also occurred close in time to the crimes with which Appellant was
charged. The assaults on Minor 3 at Devereux occurred between March 2017
and August 24, 2017, the sexual overtures and assaults on Minor 1 began in
December 2017, and the last of the assaults with which Appellant was charged
occurred in February 2018. The acts at the party occurred in or about October
2017, in the middle of this period.
Moreover, the potential for any prejudice was minimized by a cautionary
jury instruction. The trial court specifically instructed the jury that Minor 3’s
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testimony concerning Appellant’s sexual contact with him at the party could
be considered by them only to show Appellant’s intent in his other conduct
with the victims and to corroborate other testimony and that Appellant was
not on trial for the conduct at the party. N.T., 9/5/19, at 243. Appellant did
not object to this instruction or request any additional cautionary instruction.
Id. at 251. Given this instruction, the probative value of this evidence
outweighed the potential for unfair prejudice.
Appellant argues that he is entitled to a new trial because the
Commonwealth did not provide reasonable notice of the evidence of other acts
in advance of trial as is required by Rule 404(b)(3) and he did not have
adequate time to investigate Minor 3’s new allegations. We do not agree.
While the Commonwealth filed its motion only four days before trial, it
is undisputed that the Commonwealth did not learn of evidence of sex acts at
the party involving Minor 3 until its final trial preparation with Minor 3 the day
before it filed the motion. N.T., 9/3/19, at 3-4; Appellant’s Brief at 44. It is
also undisputed that the Commonwealth immediately disclosed the new
information to Appellant’s counsel. N.T., 9/3/19, at 3, 11; Appellant’s Brief at
44. Appellant’s claim that he needed time to investigate the new accusations
concerning the party is belied by the record.4 The trial court asked Appellant’s
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4 The allegation that Appellant took Minor 3 to a party was not new information
previously unknown to Appellant. Minor 3 had asserted in his initial statement
that Appellant had taken him to a party after he left Devereux at which
(Footnote Continued Next Page)
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counsel if he needed time to investigate the new information and Appellant’s
counsel said that he did not. N.T., 9/3/19, at 16. After ruling that Minor 3’s
testimony that he and Appellant had sex with the woman at the party and that
Appellant performed oral sex on him was admissible, the trial court asked
Appellant’s counsel: “[D]o you need more time to prepare as a result of that,
or are we ready for trial?” Id. Appellant’s counsel responded: “We’re still
ready, Your Honor. We prepared in case either -- it went either way.” Id.
Because Minor 3’s testimony concerning the party to which Appellant
took him was probative of common scheme and intent and as corroboration
of another victim’s testimony and the trial court took steps to prevent any
prejudice, the trial court did not abuse its discretion in admitting this
testimony. Appellant is therefore entitled to no relief on this issue.
In his final issue, Appellant argues that the trial court erred in denying
his motion for a new trial based on after-discovered evidence. This argument
is without merit.
A convicted defendant may be granted a new trial based on after-
discovered evidence only if the following four requirements are met: (1) the
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Appellant had touched him, Appellant had sex with a woman and Appellant
encouraged him to have sex with a woman, and that statement had been
provided to Appellant in discovery. N.T., 9/3/19, at 4, 9-10, 14-16. Minor 3’s
allegations that he had sex with the woman at the party and that Appellant
performed oral sex on him at the party, were, however, new information of
which both the Commonwealth and Appellant were unaware until five days
before trial. Id. at 4-5.
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new evidence could not have been obtained during or prior to trial through
reasonable diligence; (2) the new evidence is not merely corroborative or
cumulative of evidence that was admitted at trial; (3) the new evidence will
not be used solely to impeach credibility; and (4) the new evidence would
likely result in a different verdict. Commonwealth v. Small, 189 A.3d 961,
972 (Pa. 2018); Commonwealth v. Griffin, 137 A.3d 605, 608 (Pa. Super.
2016); Commonwealth v. Trinidad, 96 A.3d 1031, 1037 (Pa. Super. 2014).
In addition to meeting these requirements, the proposed new evidence must
be producible and admissible. Commonwealth v. Ford, 141 A.3d 547, 557
(Pa. Super. 2016); Griffin, 137 A.3d at 608; Trinidad, 96 A.3d at 1037. We
may reverse the trial court’s denial of a motion for a new trial based on after-
discovered evidence only if its ruling constitutes an abuse of discretion.
Trinidad, 96 A.3d at 1037.
The evidence at issue here does not satisfy the requirements for a new
trial based on after-discovered evidence. The only new evidence that
Appellant claimed to have discovered was proposed testimony of a former
Devereux employee who worked in a different part of the Devereux campus,
did not know Appellant, and did not claim to know Minor 1, Minor 2, or Minor
3. Supplemental Post-Sentence Motion at 1-3; N.T., 9/23/20, at 12. This
witness did not claim to have any knowledge of events on which any of the
charges against Appellant were based and would testify only that Devereux
residents knew what parts of the campus had no cameras and that other
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Devereux residents made false claims of sexual abuse or threatened to claim
sexual abuse when Devereux staffers disciplined them. Supplemental Post-
Sentence Motion at 2-4; N.T., 9/23/20, at 12.
The new witness’s testimony concerning residents’ knowledge of which
locations lacked cameras was cumulative of other testimony admitted at
Appellant’s trial. Minor 1 testified that he knew that there were no cameras
in the places where the assaults occurred and a Devereux supervisor testified
that it was common knowledge at Devereux which places on its campus did
not have cameras. N.T., 9/4/19, at 70-71, 114, 231-32. Indeed, the
Commonwealth argued to the jury that everyone at Devereux knew which
places had no cameras. Id. at 11, 20; N.T., 9/5/19, at 211, 217-18.
The witness’s other proposed testimony was that individuals other than
Minor 1, Minor 2, and Minor 3 had made or threatened to make false
allegations of sexual abuse against Devereux employees. That testimony
would not even be admissible as it showed nothing about Appellant, his
accusers or the assaults of which Appellant was accused. After-discovered
evidence of misconduct of other persons that are not the defendant’s accusers
and have no involvement in the defendant’s case is not relevant or admissible
evidence and cannot be grounds for a new trial. Griffin, 137 A.3d at 610.
For the foregoing reasons, we conclude that none of the issues raised
by Appellant merits relief. Accordingly, we affirm Appellant’s judgment of
sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021
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