Com. v. Leger, K.

J-S19018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN VASQUEZ LEGER :
:
Appellant : No. 2375 EDA 2017
Appeal from the Judgment of Sentence February 16, 2017
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000671-2016
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED MAY 22, 2018
Appellant Kevin Vasquez Leger appeals from the judgment of sentence
following his convictions for aggravated indecent assault–victim under 16
years of age and indecent assault–person less than 16 years of age.1
Appellant asserts that the trial court erred by refusing to grant a continuance
to enable counsel to adequately review medical records and by refusing to
permit certain cross-examination of A.L. (Victim) regarding misrepresentation
of her age. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3125(a)(8) and 3126(a)(8), respectively.
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Appellant, then a 22-year-old male, and Victim met via social media in
early 2016 and exchanged messages via “Twitter.”2 After exchanging
messages for a couple of weeks, Victim, who had turned thirteen years old a
few days earlier, used “Snapchat”3 to coordinate a meeting with Appellant at
a shopping plaza on February 17, 2016. From there, Appellant drove Victim
to a storage facility where U-Haul trucks are parked. After Appellant parked
behind a truck, Appellant and Victim moved to the backseat of the car.
Appellant climbed on top of Victim and began kissing her face, neck, and
chest, then performed oral sex on her. After they dressed, Appellant dropped
Victim off at a gym. Victim walked home from the gym. Victim’s parents
confronted her upon her return to the home, and Victim informed them of
what had happened.
Victim was taken to a hospital and a sexual assault kit was completed.
After a detective interviewed Victim, the police obtained search warrants to
identify the person using the Twitter and Snapchat accounts to interact with
Victim. The police determined that the accounts belonged to Appellant.
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2 Twitter is an application in which users post short updates called tweets that,
according to Victim, “you could re-tweet . . . or like[.] You could text people
in private.” N.T., 11/8/16, at 119.
3Snapchat is an application where “you could share pictures and text people,
but it’s only saved up to [a certain] amount of time.” N.T., 11/8/16, at 120.
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Thereafter, Appellant was charged with involuntary deviate sexual
intercourse with a person less than 16 years of age, 4 aggravated indecent
assault, indecent assault, and related charges.5
Jury selection was held on November 1, 2016. After jury selection was
completed, on November 3, 2016, the Commonwealth provided defense
counsel with eighteen pages of Victim’s medical records.6 Appellant filed a
combined motion for continuance the next day to review the medical records
and to compel discovery. According to the motion, the “records supplied on
November [3], 2016 describe a previous incident of sexual assault involving
the same complaining witness occurring approximately 7 months prior to the”
underlying crimes and establish Victim’s history of psychiatric treatment.
Appellant’s Mot. for Continuance and to Compel Discovery, 11/4/16, at ¶¶ 6-
7.7
The trial court held a hearing on the motion on November 8, 2016,
immediately before opening arguments. Appellant argued that the records
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4 18 Pa.C.S. § 3123(a)(7).
5The related charges included statutory sexual assault-person less than 16
years of age, 18 Pa.C.S. § 3122.1(a)(2), corruption of minors, 18 Pa.C.S. §
6301(a)(1)(ii), and unlawful contact with a minor, 18 Pa.C.S. § 6318(a)(1).
6The Commonwealth previously disclosed a sexual assault nursing evaluation.
According to the Commonwealth, it recently obtained the additional eighteen-
page medical report.
7 Appellant had also moved to compel the Commonwealth to produce all
outstanding discovery and the results of a forensic examination of the Victim’s
electronic device.
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were untimely produced notwithstanding a long-pending discovery request.
N.T., 11/8/16, at 5. He maintained that his due process rights were implicated
because he would be unable to effectively cross-examine the witnesses and
ascertain the need for any expert testimony. Id. at 5-6. The Commonwealth
countered, among other reasons, that it subpoenaed the hospital for the
medical records on October 24, 2016, and upon receiving the documents at
issue, immediately forwarded them to Appellant. Id. at 8. The trial court
denied Appellant’s motion for a continuance and commenced trial. At the
conclusion of the trial, the jury convicted Appellant of aggravated indecent
assault and indecent assault.
Appellant was initially sentenced on February 16, 2017, to twenty-two
to forty-four months’ incarceration. Appellant filed a combined motion for
reconsideration of his sentence and post-sentence motion on February 24,
2017, asserting that the trial court failed to consider mitigating factors at
sentencing and that the court erred by, among other things, denying his
request for a continuance. The trial court granted the motion for sentence
reconsideration on June 22, 2017, and resentenced Appellant to twelve
months (less one day) to twenty-four months (less two days) of incarceration,
and denied the post-sentence motion.
Appellant filed a timely notice of appeal and concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). The trial court referred to
the opinion it filed at the time of resentencing in lieu of preparing a new
Pa.R.A.P. 1925(a) opinion.
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Appellant raises the following issues for our review:
1. Whether, prior to trial, the [t]rial [c]ourt committed an error of
law when it denied the Appellant’s [m]otion to [c]ontinue the
trial[.]
2. Whether the [t]rial [c]ourt committed an error of law in denying
the defense to question the [Victim] about her
misrepresentation of her age to the Appellant and her other
related messaging to him[.]
Appellant’s Brief at 5.
In his first issue, Appellant asserts that the trial court erred when it
denied his motion to continue the trial. Specifically, Appellant claims that
because the Commonwealth did not provide Victim’s medical records until
after jury selection took place, the trial court should have granted his motion
for a continuance to permit review of the records. Id. at 13. Appellant relies
upon Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012) (en banc), in
which Appellant argues this Court “found the pre-trial denial of a [m]otion for
[c]ontinuance wherein counsel with specificity articulated why he was not
adequately prepared for trial to be an abuse of discretion.” Appellant’s Brief
at 14 (citing Ross, 57 A.3d at 88-89). Appelant reasons that his due process
rights are implicated and he should have been given additional preparation
time due to the Commonwealth’s late production of these records. Id. at 15-
16.
“The granting or refusal of a request for a continuance is vested in
the discretion of the trial court. The denial of a continuance will be reversed
on appeal only upon a showing of palpable and manifest abuse of discretion.”
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Commonwealth v. Mehalic, 555 A.2d 173, 181 (Pa. Super. 1989) (citations
omitted). “An abuse of discretion is not merely an error of judgment; rather,
discretion is abused when the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence or the record.” Ross, 57 A.3d at 91
(citations and quotation marks omitted). Additionally, “[a]n appellant must
be able to show specifically in what manner he was unable to prepare his
defense or how he would have prepared differently had he been given more
time. We will not reverse a denial of a motion for continuance in the absence
of prejudice.” Id. (citation and footnote omitted).
In Ross, trial counsel requested a continuance multiple times to obtain
expert witnesses regarding extensive forensic evidence the Commonwealth
intended to present at trial. The trial court denied the requests. An en banc
panel of this Court held that trial counsel adequately informed the trial court
of his inability to prepare his defense where he “advised the trial court that he
had not had ample time to meet with his own experts or to locate or interview
potential witnesses who could be called on Ross’ defense.” Id. at 93 (citations
omitted).
Instantly, defense counsel requested a continuance to review the
medical records that were not produced until after jury selection in the case.
Significantly, however, Appellant provides no explanation as to how counsel
was hindered in preparing the defense other than the bald statement that “it
is of the utmost importance that adequate preparation for trial be allowed.”
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Appellant’s Brief at 15.8 This is distinguishable from Ross, where
continuances were requested specifically to obtain expert witnesses.
Moreover, in the instant matter, counsel had at least four full calendar days
within which to complete a review of the medical records prior to trial
beginning. Accordingly, we discern no abuse of discretion by the trial court
denying the requested continuance. See Mehalic, 555 A.2d at 181.
Appellant also asserts that the trial court erred by denying the defense
an opportunity to cross-examine Victim regarding misrepresentation of her
age. Appellant argues that
[a]t issue in the trial of this matter was the defense of mistake of
age. Questions related to misrepresentations as to [Victim’s] age
and questions on the text messages she sent to the Appellant are
material and probative of the issue of his allowable defense. The
non-allowance of those questions constitutes a misapplication of
the rules of evidence at worst and an abuse of discretion at best.
Appellant’s Brief at 17.
At the outset, we note that Appellant’s brief does not expressly identify
a particular portion of his cross-examination of Victim in which he was
precluded from exploring a mistake of age defense. Indeed, Appellant
provides no citations to the record and offers nothing more than vague,
conclusory statements such as the one quoted above. Accordingly, we could
find this issue to be waived. See Commonwealth v. Williams, 2 A.3d 611,
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8 On appeal, Appellant did not reiterate the arguments he made before the
trial court, specifically that he would be unable to adequately cross-examine
the witnesses and determine whether expert testimony was needed for his
defense. N.T., 11/8/16, at 5-6.
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613 n.1 (Pa. Super. 2010) (holding that issues are waived where they are
“indecipherably vague” and not supported by citations to the record).
However, Appellant, in his brief, references his Rule 1925(b) statement.
See Appellant’s Brief at 16. In his Rule 1925(b) statement, Appellant raised
a claim that the trial court erred by failing “to allow cross[-]examination of
[Victim] regarding the ‘trap queen baby’ name [Victim] used online and the
sexual sophistication the lyrics of the rap song would have suggested to
[Appellant].” Appellant’s Concise Statement of Errors Complained of on
Appeal, 8/16/17, at 2 (unpaginated). Therefore, we will address this claim.
By way of background, Appellant, during cross-examination of Victim,
elicited that Victim used the online name “Trap Queen” because she liked a
“particular song by a particular rapper.” N.T., 11/8/16, at 151. When
Appellant’s counsel was about to ask Victim about the song, the
Commonwealth objected. Id.
At a side-bar conference, the Commonwealth asserted that the song is
“totally irrelevant[, and a]ll it is is a way to try to attack [Victim’s] character.”
Id. In response, Appellant’s counsel noted that the song is by “a rapper who
plays to a much older audience than a 13-year-old. And there is a video with
a very sexual theme with a young girl with the rapper in a car.” Id. The trial
court sustained the Commonwealth’s objection to the introduction of the
lyrics, but ruled that Appellant’s counsel could elicit testimony that Victim did
use the name “Trap Queen” when communicating with Appellant. Id. at 152-
53.
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We further note that Appellant elected to testify at trial. During direct
examination, the following exchange occurred:
[Appellant’s counsel]. And she told you her Snapchat name was
Trap Queen Baby, right?
[Appellant]. Yes.
Q. And did you know what that was a reference to?
A. Yes.
Q. Can you tell us what it was?
A. It’s from a song named Trap Queen from Fetty Wap.
Q. And is Fetty Wap a rapper?
A. Yes, from Jersey.
Q. From New Jersey?
A. Yes.
Q. And is he really popular?
A. Yes.
Q. And was he somebody who you listened to before you ever got
this communication from [Victim] --
A. Yes.
Q. You have to wait until I’m finished because she has to write --
she has to get both sides down.
A. Sorry.
Q. And did her use of that name convey anything else to you about
her age?
A. Yes.
Q. Can you tell the jury about that?
A. Because initially the song Trap Queen is, like, about women,
drugs and all that and, like, having a person to be with, like, that
one person you could trust or someone that you could tell
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everything to. That’s your trap queen. What you tell her, she won’t
tell anybody.
Q. Is the Trap Queen song something that you have seen the video
of also?
A. Yes.
Q. And is it similar to what you just described to the jury about
what the theme is --
A. Yes.
Q. -- of Trap Queen?
A. Yes.
Q. So, what did that make you think about how old she was?
A. I thought she was older, like, a regular teenager that goes to
high school. I didn’t know 13 year olds listened to Fetty Wap at
their house.
N.T., 11/9/16, at 17-19.
It is well settled that
[t]he admissibility of evidence is within the sound discretion of the
trial court, and we will not disturb an evidentiary ruling absent an
abuse of that discretion. 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. Semenza, 127 A.3d 1, 4 (Pa. Super. 2015).
Under Pennsylvania Rule of Evidence 402, “[a]ll relevant evidence is
admissible[,]” and “[e]vidence that is not relevant is not admissible.” Pa.R.E.
402. “Evidence is relevant if it logically tends to establish a material fact in
the case, tends to make a fact at issue more or less probable or supports a
reasonable inference or presumption regarding a material fact.” Semenza,
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127 A.3d at 7 (citation omitted); see Pa.R.E. 401. However, evidence may
be excluded where its probative value is outweighed by a danger of confusing
the issues, misleading the jury, or unfair prejudice. See Semenza, 127 A.3d
at 7; see Pa.R.E. 403 (indicating that “[t]he 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”).
Even assuming that the evidence would have been relevant, further
questions about the song and its lyrics would likely have been more prejudicial
and misleading than probative, due to the mature nature of the lyrics and the
implications regarding Victim’s sexual sophistication. See Semenza, 127
A.3d at 7; Pa.R.E. 403. Accordingly, we find no abuse of discretion in the trial
court refusing to allow a further line of inquiry regarding the “Trap Queen
Baby” song. See Semenza, 127 A.3d at 4.
Moreover, we note that defense counsel was permitted to ask Victim
about the age she represented herself to be in her communications with
Appellant and otherwise was permitted to ask about the content of messages
Victim sent to Appellant. N.T., 11/8/16, at 149-153. Additionally, Appellant
was later permitted to testify about the song as well as the effect Victim’s use
of the name “Trap Queen Baby” had on him. Therefore, we conclude that no
relief is due on this issue.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/18
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