Com. v. Booth, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 BOOTH :
:
Appellant : No. 1303 EDA 2020
Appeal from the Judgment of Sentence Entered February 4, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005705-2015
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JUNE 4, 2021
Robert Booth appeals from the judgment of sentence following his
convictions for Involuntary Deviate Sexual Intercourse and Sexual Assault.1
He challenges the weight of the evidence, rulings on evidence, and the denial
of his request to call a defense witness. We affirm based on the opinion of the
Honorable Jeffery Minehart.
The charges at issue stem from Booth’s sexual abuse of his niece, J.L.M.
Before trial, the Commonwealth filed a motion in limine to introduce the
testimony of Booth’s former stepdaughter, J.M. – also referred to in the record
as “J.G.” – and her cousin, H.L., regarding Booth’s alleged sexual assaults of
them. Following a hearing, the court granted the motion because “there [was]
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1 18 Pa.C.S.A. §§ 3123(a)(7) and 3124.1, respectively.
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a sufficient nexus and that the facts alluded to in each statement are strikingly
similar.” N.T., Motions Hearing, 9/11/18, at 35.
Specifically, all the victims that [Booth] is alleged to have
sexually assaulted were young girls and [the abuse] started
prior to the child being the age of nine, . . . all of the victims
were sexually assaulted or alleged to have been sexually
assaulted by [Booth] for several years, all of them had a
familial relationship with the defendant or were close family
friends, all of the assaults occurred in [Booth’s] home when
a child would spend time, reside or spend the night. [Booth]
wore stockings when he was alleged to have sexually
abused each victim. [Booth] allegedly showed pornography
to each victim, all of the assaults involved similar sexual
acts. [Booth] would either be completely naked or wearing
just stockings when around two of the victims. Also in each
of them, specifically J.G. and H.L., that [Booth] rubbed his
penis and testicles against the feet of each girl and all of the
assaults occurred when no adults were present. Additionally,
the time span of the assaults is similar in time. There is a
nexus within the time. Those are the most compelling
factors that this [c]ourt has taken in to account under
Commonwealth v. Hughes, 521 Pa. 459, which is a 1989
case which the Court directed us to look at factors including
age, race, physical appearance of the victims involved, date,
location of each crime, relationship to the defendant to each
victim and the specific acts the defendant is alleged to have
committed with each victim.
Id. at 35-37.
Following a bench trial, the trial court found Booth guilty of the above
offenses and sentenced him to two to four years’ incarceration followed by
three years’ probation. Booth filed a post-sentence motion, which the trial
court denied. This timely appeal followed.
Booth raises the following issues before this Court:
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I. Was the verdict of guilt against the weight of
evidence?
II. Did the trial court commit reversible error by
permitting the testimony of two other accusers
concerning uncharged misconduct?
III. Did the trial court commit reversible error by
restricting the scope of cross-examination of the
complaining witness on issues of bias and motive?
IV. Did the trial court commit reversible error by
precluding the defense from introducing material fact
witnesses that would have undermined the credibility
of the accusations and exonerated [Booth]?
Booth’s Br. at 8 (suggested answers omitted).
Booth argues that the verdict was against the weight of the evidence
because the victim’s testimony was “scant, conflicting, and incompetent[.]”
Id. at 21. Booth states that despite the victim’s claims of sexual assault, she
“reached out to [Booth] when she needed help, needed things fixed, needed
a place to stay, needed a babysitter for her kids and when she needed a
vacation.” Id. He argues that “[i]t defies logic that [the victim] would have
delved into such involvement with [Booth] had the accusations been true.”
Id.
We review a challenge to the weight of the evidence as follows:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. 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 when reviewing a trial court's determination that
the verdict is against the weight of the evidence. One of the
least assailable reasons for granting or denying a new trial
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is the lower court's conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citations
omitted). The uncorroborated testimony of a victim, if believed by the
factfinder, can be sufficient to convict. Commonwealth v. Charlton, 902
A.2d 554, 562 (Pa.Super. 2006). “It [is] within the province of the . . . fact-
finder to resolve all issues of credibility, resolve conflicts in evidence, make
reasonable inferences from the evidence, believe all, none, or some of the
evidence, and ultimately adjudge [the defendant] guilty [or not guilty].” Id.Here, the trial court denied Booth’s challenge to the weight of the
evidence. Sitting as factfinder, the trial court found the victim’s testimony
credible despite the alleged inconsistencies Booth sees in it. Trial Court
Opinion, filed Aug. 13, 2020, at 18 (“1925(a) Op.”). As to Booth’s argument
that the victim’s continued involvement with him rendered her testimony
suspect, the trial court concluded that such actions “did not call into question
this [c]ourt’s assessment of the credibility of the complainant.” Id. at 19. The
trial court noted that Booth’s violations of the victim occurred when she was
young and “family dynamics made her reluctant to accuse [Booth] of
molesting her.” Id. Upon review of the parties’ briefs, the certified record, and
applicable case law, and the well-reasonable trial court opinion, we affirm on
the basis of the trial court opinion.
Next Booth argues that the trial court erroneously allowed the testimony
of Booth’s former stepdaughter and her cousin. He maintains that the
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testimony was irrelevant and prejudicial because it “lack[ed] any striking
similarities or close factual nexus to the conduct for which [Booth] was on
trial[.]” Booth’s Br. at 22.
We review the admission of evidence for an abuse of discretion.
Commonwealth v. Elliott, 80 A.3d 415, 446 (Pa. 2013). “An abuse of
discretion is not merely an error of judgment, but is rather the overriding or
misapplication of the law, or 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. Santos, 176 A.3d 877, 882
(Pa.Super. 2017) (quoting Commonwealth v. Antidormi, 84 A.3d 736,
749–50 (Pa.Super. 2014)). Rule 404(b) of the Pennsylvania Rules of Evidence
bars admission evidence of prior bad acts to establish a person’s character
and to prove that the person acted on a particular occasion in conformity with
that character. Pa.R.E. 404(b)(1). However, evidence of prior bad acts is
permissible for some other, proper purpose, such as to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Pa.R.E. 404(b)(2). In a criminal case, “this
evidence is admissible only if the probative value of the evidence outweighs
its potential for unfair prejudice.” Id.Here, the trial court granted the motion in limine because the evidence
in question was admissible to show a common plan, scheme, or design. See
1925(a) Op. at 23. The court noted that to establish a common plan, scheme,
or design, the proponent of the evidence need only show “‘that there are
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shared similarities in details of each crime’ and that these similarities may
include the perpetrator’s actions, the location of the crimes, and the
commonality in the relationship of the accused and the victims.” Id. (quoting
Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991)) (emphasis
added).
In the instant case, the trial court concluded that there were multiple
similarities in the crimes, including that Booth victimized young female
relatives; he wore stockings during some of the assaults; the victims were of
similar ages at the times of the assaults; and he used similar methods to make
them comfortable.
Instantly, [Booth] victimized young girls each of whom had
family ties to him. He used similar methods to make them
comfortable, such as the use of video games and
pornography, and slowly groomed them to accept his
advances. He also took advantage of his position as an adult
figure in their lives to silence them and usually acted in the
afternoon while serving as a baby sitter of sorts to the
victims. In addition, with some of the victims, he wore
women’s stockings and with others exhibited a foot fetish.
Also, the victims were similar in age and thus, particularly
vulnerable and their families either were related to [Booth]
or friends with him.
Id. at 24.
The trial court also concluded that the probative value of the evidence
outweighed the potential for unfair prejudice because Booth was tried before
a judge sitting without a jury, and a judge is presumed not to “misuse the
evidence or consider it as propensity evidence.” Id. at 27. We discern no
abuse of discretion.
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Booth also argues that the trial court “erred in restricting the scope of
the cross-examination of the [victim] on issues of bias and motive.” Booth’s
Br. at 30. He maintains that he should have been able to “introduce
photographs that would have ultimately exonerated [him] because the
evidence would have completely undermined the credibility of [the victim].”
Id. These photographs pictured the victim and Booth together after the
incidents of abuse. Id. at 32. He alleges that the photographs “would have
supported the defense theory that the complaining witness’ bias against, and
motive to falsely accuse [Booth] was rooted in being asked to leave [Booth’s]
shore house in 2013.” Id.2
The trial court has discretion in determining the scope of cross-
examination, and we do not reverse such determinations absent an abuse of
that discretion. Commonwealth v. Largaespada, 184 A.3d 1002, 1009
(Pa.Super. 2018). A trial court may exclude relevant evidence for numerous
reasons, including where the evidence is cumulative. See Pa.R.E. 403.
Cumulative evidence is “additional evidence of the same character as existing
evidence and that supports a fact established by the existing evidence.”
Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa.Super. 2012) (citation
omitted).
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2 To the extent Booth makes passing references to the Confrontation Clause,
he waived any claim of a violation of that clause by failing to mention it in
either his Pa.R.A.P. 1925(b) statement or his Statement of Questions
Involved. See Booth’s Br. at 8, 33.
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The trial court did not abuse its discretion in limiting Booth’s cross-
examination of the victim. Sitting as factfinder, the trial court heard evidence
regarding the victim’s continued contact with Booth after the assault. This
evidence came by way of the victim herself, such as her testimony that she
visited Booth’s shore house long after the sexual abuse, as well as in the form
of photographs of her and Booth together. See 1925(a) Op. at 28-29 (citing
N.T., Trial, 10/4/19, at 108, 119-120, 123-124, 143-145, 147-148, 203-206);
N.T., Trial, 10/4/19, at 149-152. The trial court limited the scope of cross-
examination concluding that “no useful purpose would have been served by
presenting additional evidence cumulative to what already had been
established by previously admitted evidence.” 1925(a) Op. at 29. The
additional photographs that Booth wanted to introduce would have merely
been cumulative, and the trial court’s ruling was not an abuse of discretion.
Booth’s final claim is that the trial court erred in precluding him from
calling a fact witness, the victim’s brother.3 He alleges that the victim’s brother
would have testified that the victim “invited [Booth] to her house to do
handyman type jobs well after the alleged unlawful acts underlying the case.”
Booth’s Br. at 34-35. He maintains that this testimony contradicted the
victim’s version of events and would have exposed the victim’s bias and
motive.
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3 His Pa.R.A.P. 1925(b) statement identified two additional witnesses; he has
abandoned that aspect of this issue.
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This is another challenge to the admission of evidence, which we review
for an abuse of discretion. Elliott, 80 A.3d at 446. As discussed earlier, a trial
court may exclude relevant evidence that is cumulative of other evidence. See
Pa.R.E. 403; Flamer, 53 A.3d at 88 n.6.
Here, as above, the trial court heard testimony, including from the
victim herself, that she remained in contact with Booth even after his acts of
sexual abuse against her. Therefore, the trial court concluded that the
proposed testimony of the victim’s brother would have been cumulative and
unnecessary.
[T]he testimony [Booth] wished to present would have been
cumulative of testimony and evidence already presented. .
. . . [T]his [c]ourt heard from various witnesses, including
the [victim], that the [victim] had contact with [Booth],
often at her behest, on numerous occasions and that she
wanted to visit [Booth’s] shore house. Additional evidence
on that issue therefore was not necessary and would not
have either made the point clearer for this [c]ourt or, more
importantly, resulted in a different outcome.
1925(a) Op. at 30.
Upon review of the record, we discern no abuse of discretion by the trial
court in precluding the testimony of the victim’s brother. The evidence was
cumulative. We therefore affirm the judgment of sentence based on the well-
reasoned opinion of the Honorable Jeffrey Minehart.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/21
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Circulated 05/14/2021 03:48 PM
0071_Opinion