Com. v. Caravella, R.

J. A03039/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT CARAVELLA, :
:
Appellant : No. 2181 MDA 2013
Appeal from the Judgment of Sentence October 28, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division No(s).: CP-40-CR-0001431-2011
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT CARAVELLA, :
:
Appellant : No. 2182 MDA 2013
Appeal from the Judgment of Sentence October 28, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division No(s).: CP-40-CR-0002500-2011
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 09, 2015
Appellant appeals from the judgment of sentence entered in the
Luzerne County Court of Common Pleas following a jury trial held on April
*
Former Justice specially assigned to the Superior Court.
J. A03039/15
23, 2012 (“Case Number 1”)1 and his convictions for Involuntary Deviate
Sexual Intercourse with a Child,2 Aggravated Indecent Assault of a Child,3
Corruption of Minors,4 Endangering Welfare of Children,5 and Unlawful
Contact with a Minor.6
He also appeals from the judgment of sentence entered on the same
date in the Luzerne County Court of Common Pleas following a jury trial held
on December 12, 2012 (“Case Number 2”) and his convictions for Criminal
Conspiracy7 (Rape of a Child),8 Corruption of Minors,9 and Endangering the
1
In this case, Appellant was found guilty of various crimes against his minor
nieces, M.H. and S.H.
2
18 Pa.C.S. § 3123(b).
3
18 Pa.C.S. § 3125(b).
4
18 Pa.C.S. § 6301(a)(1).
5
18 Pa.C.S. § 4304(a)(1).
6
18 Pa.C.S. § 6318(a).
7
Appellant was tried with his co-defendant, the child’s Mother. See N.T.,
12/12/12.
8
18 Pa.C.S. § 903.
9
18 Pa.C.S. § 6301(a)(1).
-2-
J. A03039/15
Welfare of Children.10 These cases were consolidated by the trial court for
sentencing11 and sua sponte by this Court for appeal.
Appellant contends in Case Number 1 the court erred in (1) refusing to
have the child victims undergo psychological and psychiatric examinations to
determine their competency to stand trial and (2) not instructing the jury
that the child’s testimony was suspect because of a lack of a prompt
complaint and considerable period of silence. He claims the “totality of the
circumstances” of this case denied his right to a fair trial.
In Case Number 2, Appellant contends the court erred in (1) refusing
to have the alleged child victim, C.C., undergo psychological and psychiatric
examinations to determine his competency to testify; (2) permitting the
child to testify where records and reports of his interviews provided by the
Commonwealth contradicted accusations previously made concerning the
instant charges; (3) refusing to dismiss charges or in allowing the child to
testify after the Commonwealth produced records indicting the child was
promised he “would be able to testify in a private room alone” if he agreed
to testify against his parents; (4) permitting the Commonwealth to introduce
evidence that the child had killed cats; (5) refusing to instruct the jury that
the testimony of the child was suspect due to a lack of a prompt complaint;
10
18 Pa.C.S. § 4304(a)(1).
11
Although the first jury trial ended on April 25, 2012, sentencing was
continued, upon Appellant’s request, in order for the second trial to proceed
involving another victim. N.T., 10/28/13, at 4-5.
-3-
J. A03039/15
(6) denying his motion for discovery of records involving Patricia “Patsy”
Paci; (7) violating his right to due process in denying his right to impeach
the credibility of witnesses; and (8) permitting the child victim and Patricia
“Patsy” Paci to testify after it was disclosed the child complained she had
inappropriately communicated with him. We affirm.
We adopt the facts set forth by the trial court’s opinion in Case
Number 1 and Case Number 2. See Trial Ct. Op., 6/2/14, at 4-9. On
October 28, 2013, Appellant was sentenced to an aggregate total of thirty-
five and one-half to seventy-one years’ imprisonment. Appellant did not file
post-sentence motions.12 This timely appeal followed. Appellant timely filed
a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal in both cases and the trial court filed a responsive opinion addressing
Case Number 1 and Case Number 2.
Appellant raises the following issues on appeal in Case Number 1:
1. Was [Appellant] denied his right to a fair trial by the
[l]ower [c]ourt’s error in refusing to have the alleged child
victims undergo psychological and psychiatric
examinations to determine their competency to testify?
2. Did the [c]ourt below err in not instructing the jury that
A) the testimony of the child was rendered suspect
because of lack of prompt complaint and that it is a factor
that the jury must consider as to the sincerity of the child’s
complaint, and may justifiably produce doubt as to
12
At sentencing, the court advised him, inter alia, as follows: “You have the
right to file a post-sentence motion with me ten days from today. Any post-
sentence motions must be filed within ten days.” N.T., 10/28/13, at 80.
-4-
J. A03039/15
whether the offense indeed occurred, or whether it was a
recent fabrication of the [c]hild and that B) a child’s motive
in making the complaints against [Appellant] following a
considerable period of silence was relevant as affecting the
child’s veracity?
3. Under the “totality of the circumstances” of this specific
case, was [Appellant] denied his right to a fair trial by of
jury of his peers?
Appellant’s Brief at 4-5.13
First, Appellant contends “[t]he [c]ourt erred in denying [Appellant’s]
Omnibus Pre-Trial Motion that the [c]ourt order psychological and psychiatric
13
We note that Appellant raised twenty-four errors in his Rule 1925(b)
statement. Rule 1925(b)(4)(iv) provides that “the number of errors raised
will not alone be grounds for finding waiver.” Pa.R.A.P. 1925(b)(4)(iv).
Moreover, our Supreme Court instructed that with respect to lengthy Rule
1925(b) statements, no violation is sufficient to find waiver of issues unless
the trial court finds that the appellant acted in bad faith. PHH Mortg. Corp.
v. Powell, 100 A.3d 611, 614 (Pa. Super. 2014) (some citations omitted).
Although his Rule 1925(b) statement was not concise, we decline to find
waiver because the trial court did not find that he acted in bad faith. See
id. Additionally, despite raising three issues, Appellant raises sixteen
averments of error in the argument section of his brief, thus violating
Pa.R.A.P. 2119(a), which mandates that “arguments shall be divided into as
many parts as there are questions to be argued.” See Pa.R.A.P. 2119(a).
Appellant has failed to comply with Pa.R.A.P. 2119(c). “If reference is made
to the pleadings, evidence, charge, opinion or order, or any other matter
appearing in the record, the argument must set forth, in immediate
connection therewith, or in a footnote thereto, a reference to the place in the
record where the matter referred to appear[.]” Pa.R.A.P. 2119(c). We
decline to quash. See Powell, 100 A.3d at 615 (refusing to quash appeal
despite numerous violation of appellate briefing rules; see also
Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011) (“The briefing
requirements scrupulously delineated in our appellate rules are not mere
trifling matters of stylistic preference; rather, they represent a studied
determination by our Court and its rules committee of the most efficacious
manner by which appellate review may be conducted so that a litigant’s right
to judicial review as guaranteed by Article V, Section 9 of our
Commonwealth’s Constitution may be properly exercised.”).
-5-
J. A03039/15
examinations of the alleged child victims to assess their competency to
testify in this case.” Appellant’s Brief at 15-16. This is the sole averment in
support of this claim of error. Our Pennsylvania Supreme Court has stated:
“[W]here 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.”
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). However, in
Appellant’s second claim of error, he comingles this claim of competency
with his averments that the court erred in denying the pre-trial motion for a
psychological and psychiatric examination of the child victims to assess their
reliability as fact witnesses. We will decline to find issue one waived and
address them together as they are interrelated.
In Appellant’s third claim, he baldly asserts the copies of records and
reports of interviews which were provided to him by the District Attorney’s
Office indicate the alleged child victims contradicted previous accusations
concerning the charges against Appellant, thus the court erred in finding the
child victims competent to testify. Id. at 18. Although Appellant cites no
law in support of this claim, we will address it as it is interrelated to the
competency of the children raised in issue two.
Appellant avers he “had reason to doubt the competency of the alleged
victims. Significant questions were reasonably posed concerning their
mental state and the undue influence imposed upon them by their Father,
-6-
J. A03039/15
the police and caseworkers. Here, the case for examination was more so
required, as the children’s Mother did not believe their claims.” Appellant’s
Brief at 16. We find no relief is due.
Our review of this issue is governed by the following principle. “The
question of a person’s competency to be a witness is vested within the
sound discretion of the trial court.” Commonwealth v. Alston, 864 A.2d
539, 548 (Pa. Super. 2004) (en banc). Pennsylvania Rule of Evidence 601
provides:
(a) General Rule. Every person is competent to be a
witness except as otherwise provided by statute or in
these Rules.
(b) Disqualification for Specific Defects. A person is
incompetent to testify if the Court finds that because of a
mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving
accurately;
(2) is unable to express himself or herself so as to be
understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the
truth.
Pa.R.E. 601.
In Commonwealth v. Boich, 982 A.2d 102 (Pa. Super. 2009) (en
banc), this Court reversed the trial court and held the defendant did not
show a compelling need existed for an involuntary psychiatric examination of
-7-
J. A03039/15
the victim’s competence to testify. Id. at 104. The Boich Court opined that
Rule 601
is expressly intended to preserve existing Pennsylvania
law. “In general, the testimony of any person, regardless
of [her] mental condition, is competent evidence, unless it
contributes nothing at all because the victim is wholly
untrustworthy. Thus, in Pennsylvania, [a witness is]
presumed competent to testify, and it is incumbent upon
the party challenging the testimony to establish
incompetence.”FN6 Above all, given the general
presumption of competency of all witnesses, a court ought
not to order a competency investigation, unless the court
has actually observed the witness testify and still has
doubts about the witness’ competency.
__________________
FN6 The presumption of competency also
applies to child witnesses. In the case of a child
witness, once evidence of corruption is established,
the court must make a searching judicial inquiry into
the mental capacity of a witness under the age of
fourteen; that investigation involves whether the
child witness has the following: “(1) capacity to
observe or perceive the occurrence with a substantial
degree of accuracy; (2) ability to remember the
event which was observed or perceived; (3) ability to
understand questions and to communicate intelligent
answers about the occurrence, and (4)
consciousness of the duty to speak the truth.” See
also Commonwealth v. Delbridge, [ ] 859 A.2d
1254 ([Pa.] 2004) (explaining judicial competency
investigations apply in cases where sexual abuse
complainants are young children because child’s
memory is uniquely susceptible to falsely implanted
suggestions which may cause child difficulty in
distinguishing fact from fantasy when called to
testify). “These concerns clearly become less
relevant as a witness’ age increases, ultimately being
rendered totally irrelevant as a matter of law by age
fourteen. While the age of fourteen is somewhat
arbitrary, it appears to give a sufficient buffer for
slow developers such that any issue with
-8-
J. A03039/15
competency at that age would need to be caused by
some factor other than immaturity.” This same
competency standard also applies when a proposed
witness suffers from a mental condition. Pa.R.E.
601(b). “If the trial court is presented with credible
evidence that a proposed witness is . . . mentally
retarded, the court shall conduct a judicial inquiry to
determine the testimonial competency of the
proposed witness. The factors . . . in making [this]
determination are the same factors . . . used in
determining the competency of a child witness.”
Claims that a witness’ memory has been corrupted by
insanity, mental retardation, hypnosis, or taint go to the
competency of that witness to testify. The capacity to
remember and the ability to testify truthfully about the
matter remembered are components of testimonial
competency. The party alleging a witness is incompetent
to testify must prove that contention by clear and
convincing evidence.
Id. at 109-10 (some citations omitted and emphases supplied).
Instantly, the trial court opined that Appellant’s “request for a
psychiatric examination of the child victims, however, was properly denied.
As noted by the [c]ourt, other than his request for the examination,
[Appellant] failed to provide a compelling reason or a substantial need for
the psychiatric examination.” Trial Ct. Op. at 10. We agree no relief is due.
At the hearing on the omnibus pre-trial motion, Appellant presented
the following argument to the court in support of its request for a psychiatric
examination:
Counsel for Appellant: The second motion, Judge, in the
omnibus motion is a motion to conduct an independent
psychiatric examination. As Your Honor well knows, this
may be granted within the sound discretion of the court.
[Appellant] has a reason to doubt the competency of the
-9-
J. A03039/15
alleged victims in this case. They were both minors at the
time of the alleged incidents.
We believe that the alleged victims have been
influenced, improperly influenced, by, number one, the
father who the two children still live with; the mother does
not live with them anymore. Also by various caseworkers
from Children and Youth and the police. And this
influence, I believe, can only be shown by an independent
professional. And in this case, I believe a psychiatrist or a
child psychologist who can determine if, in fact, these
children have been influenced or tainted in any way.
N.T., 2/17/12, at 7-8.
The court asked counsel if there was “anything specific that leads into
a discussion as to why an involuntary psychiatric examination of a witness is
compelling” in this case. Id. at 9. The court asked counsel if he had
reviewed the records from Children and Youth. Id. at 10. Counsel
responded that he did not and the Commonwealth stated that they had not
been provided with those records. Id. Counsel for Appellant asked the
Commonwealth if they were “using any Children and Youth Records for [the]
trial” and the Commonwealth stated they were not. Id. at 10-11. Counsel
for Appellant stated: “Then I don’t need them. But again . . . .” Id. at 11.
The court stated: “Well, if you’re trying to put out an argument of taint,
wouldn’t a review of those records be essential to your need for a psychiatric
evaluation . . . .” Id. The court concluded that ”without any specificity, I’m
not finding any compelling reason that’s established that the psychiatric
examination, which is intrusive and ordered in very rare circumstances,
should even be considered.” Id.
- 10 -
J. A03039/15
Appellant has not provided a compelling reason in support of his claim
of error. See Boich, 982 A.2d at 109-10. We discern no abuse of discretion
by the trial court. See Alston, 864 A.2d at 548.
Appellant’s averments four and five baldly assert the court erred in
denying his motion for discovery of certain records and materials in
possession of the Luzerne County Child Advocacy Center. Appellant has not
provided any citation to relevant authority in support of these claims.
Therefore, we find these claims waived. See Pa.R.A.P. 2119(c); Johnson,
985 A.2d at 924.
In averment six, Appellant contends
[t]he [c]ourt erred in denying [his m]otion that the [c]ourt
order the release and production of any internal
investigations, records, citizen’s complaints and/or
personnel files of the agents of the Luzerne County
Children & Youth Services and the Luzerne County Child
Advocacy Center, and should have conducted an in camera
examination of prosecution files and reports to determine
their relevance within the meaning of the law and what
may have been discoverable.
Appellant’s Brief at 19. In averment seven, Appellant reiterates the claim of
error regarding the denial of discovery requests and refusal to conduct an in
camera inspection. Id. at 20.
The trial court found Appellant waived these boilerplate allegations of
error in paragraphs six and seven for failure to raise the issue or failure to
preserve it with an objection. Trial Ct. Op. at 10. We agree no relief is due.
Our review of the record reveals that at the first hearing on the
- 11 -
J. A03039/15
omnibus motions, the court asked counsel for Appellant if he had received
the records from Children and Youth and counsel responded that he did not.
See N.T., 2/17/12, at 10-11. The court explained “if you want Children and
Youth records, there’s a process, and you would have to participate. And
that doesn’t happen instantly because they have to redact and review. So
you would have to make that determination as soon as possible.” Id. at 11-
12. Counsel responded that he understood. Id. at 12. On April 18, 2012,
another hearing was held on pre-trial motions. Counsel indicated that it had
received the records from Children and Youth. N.T., 3/18/12, at 2-3
(emphasis added). No objection was raised before the trial court. See id.
We find the issue waived. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
In averments eight through twelve, Appellant contends the court erred
in not instructing the jury regarding the lack of a prompt complaint.
Appellant’s Brief at 21. Our review is governed by the following principles:
“[I]n reviewing a challenge to the trial court’s refusal to
give a specific jury instruction, it is the function of this
[C]ourt to determine whether the record supports the trial
court's decision.” In examining the propriety of the
instructions a trial court presents to a jury, our scope of
review is to determine whether the trial court committed a
clear abuse of discretion or an error of law which controlled
the outcome of the case. A jury charge will be deemed
erroneous only if the charge as a whole is inadequate, not
clear or has a tendency to mislead or confuse, rather than
clarify, a material issue. A charge is considered adequate
unless the jury was palpably misled by what the trial judge
said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
- 12 -
J. A03039/15
discretion in fashioning jury instructions. The trial court is
not required to give every charge that is requested by the
parties and its refusal to give a requested charge does not
require reversal unless the appellant was prejudiced by
that refusal.
Commonwealth v. Brown, 911 A.2d 576, 582-83 (Pa. Super. 2006)
(citation omitted).
As a prefatory matter, we consider whether Appellant has preserved
any objection to the jury instructions. Appellant has not complied with
Pa.R.A.P. 2119(c), nor has he cited any relevant law in support of his claims,
other than Pa.R.Crim.P. 647. This rule provides:
(A) Any party may submit to the trial judge written
requests for instructions to the jury. Such requests shall
be submitted within a reasonable time before the closing
arguments, and at the same time copies thereof shall be
furnished to the other parties. Before closing arguments,
the trial judge shall inform the parties on the record of the
judge’s rulings on all written requests and which
instructions shall be submitted to the jury in writing. The
trial judge shall charge the jury after the arguments are
completed.
(B) No portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections
are made thereto before the jury retires to deliberate.
All such objections shall be made beyond the hearing of
the jury.
Pa.R.Crim.P. 647(a), (b) (emphasis added).
Our Supreme Court has opined:
The pertinent rules, therefore, require a specific objection
to the charge or an exception to the trial court’s ruling on
a proposed point to preserve an issue involving a jury
instruction. Although obligating counsel to take this
additional step where a specific point for charge has been
- 13 -
J. A03039/15
rejected may appear counterintuitive, as the requested
instruction can be viewed as alerting the trial court to a
defendant’s substantive legal position, it serves the
salutary purpose of affording the court an opportunity to
avoid or remediate potential error, thereby eliminating the
need for appellate review of an otherwise correctable
issue.
Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005) (footnotes
omitted). At the conclusion of the charge to the jury, the court inquired
whether “either attorney [ha] anything else that we need to add?” N.T.,
4/23/12, at 465. Counsel stated: “Nothing, Your Honor. Thank you.” Id.
Therefore, Appellant has waived this issue for failing to object before the
jury retired to deliberate. See Pa.R.Crim.P. 647(b), Pressley, 887 A.2d at
224. Regardless, a review of the record belies Appellant’s claim of error in
not instructing the jury regarding the failure to make prompt complaint.
At trial, the court instructed the jury as follows:
Another important point, before you may find the
Defendant guilty of the crimes charged in this case, you
must be convinced beyond a reasonable doubt that the
acts charged did, in fact, occur. The evidence provided by
[M.H. and S.H.] shows a delay in making a complaint.
That delay in making a complaint does not necessarily
make her testimony unreliable, but it may remove from
the testimony its assurance of─of reliability accompanying
the prompt complaint or outcry that a victim of a crime
such as this would ordinarily be expected to make.
Therefore, the delay in making a complaint by [M. H. and
S.H.] should be considered in evaluating their testimony in
deciding whether the acts occurred.
You must not consider [M.H. and S.H.’s] delay in
making a complaint as conclusive evidence that the acts
did not occur. These are factors that you should consider
as bearing on the believability of their testimony and
- 14 -
J. A03039/15
should be considered by you in light of all the evidence
that was presented in this case.
N.T., 4/23/12, at 448-49. In light of the jury charge on prompt complaint,
the issue is meritless.
Next, in averment thirteen, Appellant contends the court erred in
refusing to inquire of potential jurors the questions he submitted in writing
on voir dire, or to permit him to do so. Appellant’s Brief at 23. He states:
“The presumption of innocence in this factually disturbing case is difficult for
all of us, but without it, [Appellant] did not have a chance of a fair trial.” Id.
at 24. Appellant argues that there should have been an expanded voir dire
because “[v]irtually no other type of criminal case can be compared with
these types of crimes; just as any Penn State alumni who has suffered insult
as a result of the crimes of Jerry Sandusky.” Id. at 25. Appellant requested
that prospective jurors, who had been victims of sexual misconduct or whose
relatives or close associates had been victims, should have been sequestered
to protect their privacy. Id. at 26.
On this issue our standard of review is as follows:
It is well established that the scope of voir dire rests in
the sound discretion of the trial court, whose decision will
not be reversed on appeal absent palpable error.
Similarly, the trial court possesses discretion to determine
whether counsel may propose their own questions of
potential jurors during voir dire.
Commonwealth v. Mattison, 82 A.3d 386, 397 (Pa. 2013) (citations
omitted).
- 15 -
J. A03039/15
Instantly, the trial court opined:
This [c]ourt’s refusal to permit the overly specific
questions proposed by [Appellant] was not a gross abuse
of discretion as this [c]ourt did ask the prospective jurors
generally whether they, or a friend or family member had
been a victim of a crime, and whether they questioned
their ability to be fair because the charges concerned
sexual conduct with a minor. Additionally, this [c]ourt
explored the possible bias of some of the prospective
jurors by questioning them individually at sidebar.
There is no question that this [c]ourt’s voir dire process
was designed to secure a competent, fair, impartial and
unprejudiced jury for [Appellant]. For example, the
questions asked by this [c]ourt during voir dire and at
sidebar of one of the jurors revealed that Juror number 7
suffered from child abuse, her daughter was abused as a
child and her granddaughter was raped when she was a
senior in high school. Juror number 7 was dismissed for
cause. The dismissal of Juror number 7 demonstrates the
effectiveness of this Court’s voir dire process in dismissing
a juror who may not have been fair, impartial and
unprejudiced based upon her life experiences.
Trial Ct. Op. at 13. We agree no relief is due.
A review of the record belies Appellant’s assertions. Instantly,
prospective jurors were questioned at sidebar regarding, inter alia, their
expressed reservations during voir dire. The court indicated that counsel
could also question the prospective jurors at this time. N.T., 4/23/12, at 54.
We discern no abuse of discretion. See Mattison, 82 A.3d at 397.
Appellant has waived the claims raised in averments fifteen and
sixteen. He cites no legal authority in support of the claim that the court
erred in denying his motion for a change in venue. See Johnson, 985 A.2d
at 924. Similarly, Appellant cites no legal authority in support of his
- 16 -
J. A03039/15
objection to the process by which the court found that he was a sexually
violent predator. Therefore, this issue is waived. See id.
Finally, Appellant contends he was denied a fair trial by a jury of his
peers under the “totality of the circumstances.” Appellant’s Brief at 13.
Appellant did not raise this issue in his Rule 1925(b) statement of errors
complained of on appeal, and therefore it is waived. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”). Even
assuming, arguendo, the issue were not waived, it is meritless based upon
Appellant’s failure to establish any error by the trial court.
In Case Number 2, Appellant raises the following issues for our review:
1. Was . . . Appellant denied his right to a fair trial by the
[l]ower [c]ourt’s error in refusing to have the alleged child
victim [C.C.] undergo psychological and psychiatric
examinations to determine his competency to testify?
2. Was [Appellant] denied a fair trial when the [l]ower
[c]ourt erred in finding the [c]hild competent to testify in
this case, even after the District Attorney’s Office provided
copies of records and reports of interviews wherein the
[c]hild contradicted the accusations previously made
concerning the instant charges against . . . Appellant?
3. Was [Appellant] denied a fair trial when the [l]ower
[c]ourt erred in failing to dismiss the charges or in
permitting the [c]hild to testify even after the District
Attorney’s Office provided copies of records and reports of
interviews wherein it was disclosed that the [c]hild was
promised that he “would be able to testify in a private
room alone” if he agreed to testify against his parents on
the current charges?
- 17 -
J. A03039/15
4. Was . . . Appellant denied a fair trial when the [c]ourt
improperly permitted the Commonwealth to introduce
evidence that C.C. had killed cats while living with his
parents, as a result of his alleged abuse[?]
5. Did the [c]ourt below err in not instructing the jury that
A) the testimony of the [c]hild was rendered suspect
because of lack of prompt complaint and that it is a factor
that the jury must consider as to the sincerity of the
[c]hild’s complaint, and may justifiably produce doubt as
to whether the offense indeed occurred, or whether it was
a recent fabrication of the [c]hild and that B) the [c]hild’s
motive in making the complaints against . . . Appellant
following his considerable period of silence was relevant as
affecting the [c]hild’s veracity?
6. Whether the [c]ourt erred in denying . . . Appellant’s
Motion for discovery of certain record and materials in the
possession of the Wyoming County Children and Youth
Services involving Patricia “Patsy” Paci?
7. Did the lower [c]ourt violate . . . Appellant’s rights
pursuant to due process and confrontation provisions of
the Pennsylvania and United States Constitutions
provisions, in denying [ ] Appellant’s right to impeach the
credibility of the [c]hild, Patricia “Patsy” Paci, and other
Commonwealth witnesses with the hereinbefore mentioned
records of the Luzerne County Child Advocacy Center and
Wyoming County Children & Youth Services which may
have been reflective of the motive or bias of the [c]hild
and/or Patricia “Patsy” Paci?
8. Did the lower [c]ourt err in permitting the [c]hild and
Patricia “Patsy” Paci to testify even after it was disclosed
that the [c]hild had complained that Patricia “Patsy” Paci,
who was charged with the [c]hild’s custody and care, was
improperly communicating with him concerning the instant
case and had to be warned about her interference in this
case?
- 18 -
J. A03039/15
Appellant’s Brief at 5-6.14
First, Appellant contends the court erred in denying his motion to order
psychological and psychiatric testing of the child to determine his
competency to testify. Appellant’s Brief at 19. Appellant claimed at the
taint hearing15 he made a showing of compelling need for psychological and
psychiatric examinations. Id. at 20. In the motion, Appellant averred “[t]he
district attorney’s office has provided the defense with copies of records and
reports of interviews wherein the child contradicts accusations previously
made concerning the instant charges against [Appellant].” Def.’s Mot. for a
Pre-Trial Hr’g to Establish the Competency of the Alleged Child Victim,
6/18/12, at 3. Appellant contends the records disclosed that the child was
promised that he “would be able to testify in a private room alone” if he
testified in the instant case. Appellant’s Brief at 20. He avers “[t]he defense
was also provided with copies of records and reports of interviews wherein it
was disclosed that the child has complained that Commonwealth witness,
14
We note Appellant raised twenty-eight issues in his Rule 1925(b)
statement. We do not find waiver. See Powell, 100 A.2d at 614.
Appellant’s brief does not comply with Rule 2119(a), (c). See note 12,
supra.
15
Appellant refers to his Motion for a Pre-Trial Taint Hearing to Establish the
Competency of the alleged Child Victim, citing the reproduced record at 47a.
Appellant’s Brief at 20. We note that the reproduced record does not
contain pages 34a through 50a. This is of no moment because the motion is
included in the certified record on appeal. However, the certified record
does not include notes of testimony from a taint hearing. On July 13, 2012,
the court denied the motion regarding the issue of taint. Order, 7/13/12.
- 19 -
J. A03039/15
Patricia Paci,” an adult charged with his care, improperly communicated with
him regarding this case. Id. at 20-21.
We review this issue for an abuse of discretion. See Alston, 864 A.2d
at 548. After careful consideration of the record, the parties’ briefs, and the
well-reasoned decision of the Honorable Polachek Gartley, we affirm this
issue on the basis of the trial court’s decision. See Trial Ct. Op. at 15-18
(holding (1) the child was fourteen years old at the time of trial and
presumed competent to testify; (2) no clear and convincing evidence
presented for an involuntary psychiatric examination; and (3) no promises
were made to child that he could testify in private room).
Appellant, in statement of issues number four, avers he was denied a
fair trial when the court permitted the Commonwealth to introduce evidence
that the child had killed cats while living with his parents as a result of the
alleged abuse. Appellant’s Brief at 5. In the argument section of the brief,
Appellant reiterates this claim without any citation to legal authority.
Appellant’s Brief at 22. We find this issue waived.16 See Johnson, 985
A.2d at 924.
16
We note the trial court found the issue was waived and opined:
[Appellant] argues that he was denied a fair trial when the
[c]ourt permitted the commonwealth to introduce evidence
of the [c]hild killing cats. [Appellant], however, never
objected to the Commonwealth’s introduction of evidence
that [Appellant’s] son killed cats while living with his
parents as a result of the alleged abuse. Consequently,
- 20 -
J. A03039/15
Fifth, Appellant contends the court erred in not instructing the jury
that the testimony of the child was suspect because of the lack of a prompt
complaint.17 Appellant’s Brief at 22-23. As a prefatory matter, we consider
whether Appellant has preserved his objection to the jury instructions. See
Pa.R.Crim.P. 647(b); Pressley, 887 A.2d at 224.
As the trial court opined: “As per defense counsel’s request, the
[c]ourt read the instruction to the jury on the [c]hild’s delay in making a
prompt complaint.” Trial Ct. Op. at 20. The court instructed the jury as
follows:
Before you find [Appellant] guilty of the crimes charged
in this case, you must be convinced beyond a reasonable
doubt that the acts charged did, in fact, occur and
that─that the─that they did, in fact, occur. The evidence
of [the child’s] delay in making a complaint does not
necessary [sic] make his testimony unreliable but may
remove from it the assurance of reliability accompanying
the prompt complaint or outcry that the victim of a crime
such as this would ordinarily be expected to make.
Therefore, the delay in making the complaint should be
considered in evaluating his testimony and deciding
whether the acts occurred. You must not consider [the
child’s] delay in making a complaint as conclusive evidence
that the acts did not─did not occur, excuse me. [The
[Appellant] waived his right to appeal the Commonwealth’s
introduction of evidence that the [c]hild killed his mother’s
cats.
Trial Ct. Op. at 15. Additionally, Appellant’s counsel cross-examined the
child regarding his killing of cats. N.T., 12/12/12, at 204-11.
17
These claims of error appeared as averments fifteen through eighteen in
Appellant’s Rule 1925(b) statement.
- 21 -
J. A03039/15
child’s] failure to promptly make a complaint in any nature
and explanation for not making that complaint more timely
are factors bearing on the believability of his testimony
and should be considered by you in light of all of the
evidence that’s presented in this case.
N.T., 12/12/12, at 490-91.
The claim that the court did not give the requested charge is meritless.
Furthermore, as the trial court found, Appellant did not object to the jury
charge. Trial Ct. Op. at 20. At the conclusion of the charge, the court asked
counsel “is there anything else?” Defense counsel responded: “Nothing,
Your Honor. Thank you.” N.T. at 517. Therefore, the issue is waived. See
Pa.R.Crim.P. 647(b).
Issues six, seven and eight in Appellant’s statement of the issues on
appeal18 concern the court’s discovery rulings regarding the witness Patricia
“Patsy” Paci.19 Appellant contends the court erred in denying his motion for
discovery of certain records and materials in the possession of the Wyoming
County Children & Youth Services (“WCC&YS”) involving Patricia “Patsy” Paci
and the Luzerne County Child Advocacy Center.20 Id. at 24-30. In support
18
In the argument section of the brief, Appellant denominates these issues
as issue II: “Issues relating to Impeachment of commonwealth Witness,
Patricia Paci.” Appellant’s Brief at 24.
19
Appellant has violated Pa.R.A.P. 2119(a), (c). See note 12, supra.
20
We note that the trial court indicates that Appellant’s motion to obtain
records from WCC&YS was denied and that “[d]efense counsel acknowledged
that he did not know if the records existed, that the records would have
nothing to do with the alleged victim and that the records were from sixteen
- 22 -
J. A03039/15
of this claim, Appellant avers that he sought the court’s approval of a
subpoena of records and materials from the WCC&YS for the preparation of
cross-examination. Appellant’s Brief at 26. “Likewise, the lower [c]ourt
denial of the discovery request improperly influenced the Jury’s ability to
fairly judge [Appellant’s] guilt or innocence.” Id.
The [c]ourt violated [Appellant’s] rights pursuant to due
process and confrontation provisions of the Pennsylvania
and United States Constitutions provisions, in denying
[Appellant’s] right to impeach the credibility of Patricia
“Patsy” Paci with the hereinbefore mentioned records of
[WCC&YS] which may have been reflective of the
motive or bias of Patricia “Patsy” Paci.
Id. (emphasis added).
It is well-established that “[g]enerally, on review of an order granting
or denying a discovery request, an appellate court applies an abuse of
(16) years ago.” Trial Ct. Op. at 19, citing N.T., 7/13/12, at 4-7. Our
review of the certified record on appeal in this case did not reveal notes of
testimony from this pre-trial hearing. Appellant’s motion for discovery of
records from WCC&YS is dated October 16, 2012. See [Co-] Defendants’
Joint Motion for Discovery of Certain Records and Materials in the Possession
of the Wyoming County Children and Youth Services, 10/16/12. Appellant
sought discovery of any and all records in Wyoming County regarding
Patricia “Patsy” Paci. Id. at 4-5. The trial court scheduled a hearing on this
pre-trial motion for November 9, 2012. Order for Pre-Trial Motion, 11/5/12.
The record does not contain notes of testimony on this date. On November
9, 2012, the motion for Wyoming County Records was denied “after a full
hearing on [Appellant’s] Motion for Discovery held on November 9, 2012 . . .
.” Order, 11/9/12. The trial court opined as to the request for records from
the Luzerne County Child Advocacy Center, “the trial court properly denied
[Appellant’s] Motion[ ] and informed [him] that the records from [that]
agency had to be subpoenaed.” Trial Ct. Op. at 19. The trial court refers to
the hearing dated July 13, 2012. As previously stated, there are no notes of
testimony from the July 13th hearing in the certified record.
- 23 -
J. A03039/15
discretion standard.” Boich, 982 A.2d at 109. Instantly, the trial court
opined:
With respect to [Appellant’s] Motion to obtain records
from [WCC&YS] pertaining to the [c]hild’s caretaker, the
Motion was properly denied. Defense counsel
acknowledged that he did not know if the records
existed, that the records would have nothing to do
with the alleged victim and that the records were
from sixteen (16) years ago.
Thus, based upon the pre-trial record, the errors raised
by [Appellant] . . . have no merit. It is not the
responsibility of the [t]rial [c]ourt to conduct discovery for
[Appellant] or permit a fishing expedition for records that
are remote and protected from disclosure.
Trial Ct. Op. at 19-20 (emphasis added and citations omitted). We agree no
relief is due.
In the discovery motion, Appellant requested the court to order
WCC&YS to produce the following documents:
─Any and all information contained in the investigatory
files of the [WCC&YS] regarding Patricia “Patsy” Paci;
─any material as to whether any cases should be marked
as founded, indicated or unfounded in the possession or
under the control of the [WCC&YS] regarding Patricia
“Patsy” Paci;
─any witness confession or inculpatory statement in the
possession of the [WCC&YS] regarding Patricia “Patsy”
Paci;
─the transcripts of recordings of any interview or
statement of Patricia “Patsy” Paci;
─the videotapes of any interviews or statements of Patricia
“Patsy” Paci;
- 24 -
J. A03039/15
─all written and recorded statements and substantially
verbatim oral statements of Patricia “Patsy” Paci in the
possession of [WCC&YS].
[Co-]Defendants’ Joint Motion for Discovery of Certain Records and Materials
in the Possession of the Wyoming County Children and Youth Services,
10/16/12 at 4-5.
Appellant contends he needed the records in order to impeach the
credibility of Patricia “Patsy” Paci. At trial, Appellant cross-examined Paci
and stated to the court “I’m entitled to use this witness [Paci] to impeach
[the child’s testimony] to see if he was telling the truth.” N.T., 12/12/12, at
283. The court responded “Okay.” Id. We discern no abuse of discretion.
See Boich, 982 A.2d at 109.
In the argument section of the brief, as issue IV, “Other Errors of Law
that Alone or Together Acted to Deny [Appellant] of Her [sic] Right to a Fair
Trial,” Appellant baldly raises several issues.21 Appellant’s Brief at 31-32.
Appellant has not provided any discussion of these claims with citation to
relevant authority. Therefore, we find these issues waived. See Johnson,
985 A.2d at 924.
Judgment of sentence affirmed.
21
The claims on page thirty-one of the brief were raised as averments
nineteen and twenty in the Rule 1925(b) statement. The claims on page
thirty-two of the brief were raised as averments twenty one, twenty-two,
and twenty-four to twenty-six. See Appellant’s Concise Statement of Errors
Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 12/24/13 at 5, 6.
- 25 -
J. A03039/15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2015
- 26 -
Circulated 05/29/2015 01:27 PM
- IEAL TH OF PENNSYLVANIA IN THE ·coURT OF COMMON PLEAS
OF LUZERNE COUNTY
v. CRIMINAL DIVISION
ROBERT CARAVELLA NO. 1431, 2500 OF 2011
Defendant
. .... ............................. ...................... , .
ORDER
AND NOW, this 2nd day of June, 2014, upon review of the record In the above-
. .
captioned, cases, Jt is hereby DIRECTED that the. attached Opinion Is entered pursuant
to Pa.R.A.P. 1925(a) in response to the Defendant's Statement of Matters Complained
of on Appeal.
The Clerk of Courts of Luzerne County Is hereby ORDERED and DIRECTED to
transmit the entire record in this case to the Superior Court of Pennsylvania, 'and shall
serve a copy of this Order and Opinion on all counsel of record.
Coples:
Alexis Falvello, Esquire (No. 1431 of 2011)
Jenny Roberts, Esquire (No. 2500 of 2011)
Assistant District Attorneys
Andrew J. Katsock,111, Esquire
Private Counsel
_____ ,
..... .
. . .,..,
Circulated 05/29/2015 01:27 PM
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
v. CRIMINAL DIVISION
ROBERT CARAVELLA NO. 14311 2500 OF 2011
Defendant
. . ... , .
OPINION
Before the Court Is the Appeal of the Defendant1 Robert Caravella, clalmlng the
Trial Court committed twenty-two (22) errors in case No. 143·1 of 2011 and twenty-
seven (27) errors in case No, 2500 of 2011. By Per Curiam Order dated December 13,
2013 the Superior Court consolidated the Appeals as the cases Involved the same
Appellant and the same Issues. ,,
~
The Defendant at the time of the first trlal on case 1431 of 201 ~had a,ec°i!W
. (""')
<.\~. .
.
..
c:a c..:... :::e· . 1
.) .
.
case pending that was filed to 2500 of 2011. ~~ ~ :· :~ ..\',
;.t: Si: N "'11
Procedural History Case No. 1431 of 2011 : ... ' . . ·; ~ "F -e ~·: '
I
'
•• • v , '·Oc:, ,:,: C
Followlng a trial by Jury, the Defendant was found guilty 'of thirtee.n @o~s ~
.
various crimes against his minor two nieces, M... and -Sllil' t-119.
·~·~ The
Defendant was charged as follows: Counts 1, 2 and 3, Involuntary De_vlate Sexual
Intercourse with a Child, 18 Pa. C.S.A. § 3123(b), felonies of the ffrst degree; Counts 4,
5, and 6, Aggravated Indecent Assault of a Child, 18 Pa. C.S.A. § 3125(b), felonies of
the first degree; Counts 7 and 8, Corruption of Minors, 18 Pa. C.S.A."§. 6301 (art,
misdemeanors of the first degree; Counts 9 and 10, Endangering Welfare of Chlldren,
18 Pa. C.S.A. § 4304(a)1, felonies of the third degree; and Counts 11, 12 and 13,
: -',
·.··.·.·_::1,
' .. '~-
.,
. ·· ....
·. :,)',•,.
Circulated 05/29/2015 01:27 PM
Contact/Communication with a Minor. 18 · Pa. C.S.A. § 631 S(a). felonies of the first ·
degree.
At the time of verdict, the Defendant made a motlon to waive the ninety day
sentencing mandate on case 1431 of 2011 until completion of his second trial on Case
2500 of 2011 that was granted by the Court noting no objection from the District
Attorney.
On October 28t 20131 the Defendant was sentenced to an aggregate sentence of
twenty four (24) to forty eight (48) years as follows:
Count One - Involuntary Devlant Sexual Intercourse with a child Less then 13
years of age (F1) M.H. - ·
60 months to 120 months mandatory mlnlmum:
Count Two - Involuntary Deviant Sexual Intercourse with a child less than 13
years of age (F1) S.H. -
60 months to 120 months mandatory minimum consecutive to count 1
Count Three -Involuntary Deviant Sexual Intercourse with a child less than 13
years of age (F1) S.H. - ·
60 to 120 months mandatory minimum consecutive to count 2
Count Four· Aggravated Indecent Assault of a Child (F1 )·M.H. -
24 to 48 months consecutive to count 3
Count Five • Aggravated Indecent Assault of a Child (F1) S.H. -
24 to 48 months ccnseeutlve to count 4
Count Six - Aggravated Indecent Assault of a Child (F1) S.H. -
24 to 48 months consecutive to count 5
Count Nine - Endangering the Welfare of Children; Course of Conduct (F3)
12 to 24 months consecutive to count 6
Count Ten - Endangering the Welfare of Children; Course of Conduct {F3)
12 to 24 months concurrent to count 9
Count Seven - Corruption of Minors (M1)
9 to 18 months concurrent to count 10
Count Eight - Corruption of Minors (M 1)
9 to 18 months concurrent to count 11
Count Eleven - Unla'-t\lful Contact with a Minor (F1)
,, .•a.., 12 to 24 months consecutive to count 8
Count Twelve -Unlawtul Contact with a Minor (F1)
12 to 24 months consecutive to count 11
Count Thirteen - Unlawful Contact with a Minor
12 to 24 months concurrent to count 12
2
Circulated 05/29/2015 01:27 PM
Procedural History Case No. 2500 of 2011:
Following a trial by jury, the Defendant was found guilty of Count 1, Criminal
Conspiracy (Rape of Child), 18 Pa. C.S.A. § 903, a felony of the first degree; Count 2,
Corruption of Minors, 18 Pa. C~S.A. § 6301 (A) 1, a misdemeanor of the first degree; and
Counts 3, 4 and 5, Endangering Welfare of Children, 18 Pa. C.S.A. § 4304(A) 1, felonies
of the third degree, with the Defendant's minor son the victim in each enumerated
count.
. On October 28, 2013 this Court sentenced the Defenda_nt in coniunctlon with
case 1431 of 2011. He was sentenced on case 2500 of 2011 as to an aggregate
sentence of eleven and one-half (11 ~) years to twenty-three {23) years as follows:
Count One - Conspiracy to commit Rape of a Child {F1)
84 months to 168 months;
Count Two - · Corruption of Minors {M1)
9 months to 18 months consecutive to Count 3;
Count Three -Disseminating Sexual Materials to a Minor (F3)
9 months to 18 months consecutive to Count 6;
Count Four - Endangering the Welfare of Children (F3)
12 months to 24 months consecutive to Count 1;
Count Five - ·· Endangering the Welfare of Children (F3) : '· ""-
12 months to 24 months consecutive to Count 4;
Count Six • Endangering the Welfare of Children (F3)
12 months to 24 months consecutive to Count 5;
The sentence was ordered to run consecutive to the sentence Imposed in case
No. 1431 of 2011. Therefore, an aggregate sentence on both cases was Imposed of
thirty-five and one-half (35 ~) years to seventy-one (71) years in a state correctional
~
•·· _. :.: .
facility.
3
Circulated 05/29/2015 01:27 PM
Appeals:·
On November 27, 2013 the Defendant filed a Notice of Appeal wlth the Luzerne
County Clerk of Courts in both Case No. 1431 of 2011 and Case No. 2500 of 2011.
On December 4, 2013 and December 17, 2013, respectively, this Court issued
an Order In each case directing the Defendant to file of record a Concise Statement of
Errors Complained of on Appeal pursuant to Pa. R.A.P. 1925(b) and serve a copy of
same upon the District Attorney and this Court pursuant to Pa. R.A.P. 1925(b)(1).
On December 24, 2013 the Defendant filed a Concise Statement of Errors
Complafned of on Appea! alleglng twenty-two (22) errors of the Trial Court In case No.
1431 of 2011 and twenty-seven (27) errors of the Trial Court in case No. 2500 of 2011.
The Commonwealth requested ah extension of time atter receipt of all ordered
transcripts to file a Response to the Concise Statement of Matters Complained of on
Appeal.
The Commonwealth filed their Responses to Defendant's Concise Statements on
February 24, 2014 and February 26, 2014, respectively.
Summary of Factual History of Case No. 1431 of 2011:
The Defendant's deviant behavior was first documented between 2002 and 2005
wherein the Defendant's nieces, S4IIIII and Mllfl, alleged that the Defendant
placed his mouth and tongue on their private parts (vagina) and asked them to place
their mouths on his private parts (penis). He showed S ... magazines of naked
· · · grown-ups ahd showed M<91t child pornography·before he would sexually assault the
children. Between 2002 and 2004, the girls1 family lived In a double-block home in
4
Circulated 05/29/2015 01:27 PM
Nanticoke with· their mothers twin· sister Carol Hann 11 her husband (the Defendant
,·
herein) and their son Colton.2 (04/23/12, N.T. p. 164-65; 204).
In 2004 their aunt. uncle and cousin vacated the residence and moved to
Plymouth, Pennsylvania.
S- eleven (11) years old and In the sixth grade at the time of trial, testified
that she first recollected the Defendant Improperly touching her when she was three (3)
or four (4) years old. (04/23/12 N.T. p. 164-65) SP a described the residence in
detail including the layout of the rooms. (04/23/12 N.T. p. 166-67). She testified that her
uncle would take her to his bedroom in Nanticoke and ask her to take off her pants.
She remembered that the Defendant would open hls pants with the zipper down and tell
her to put her mouth on his private parts. (04/23/12 N.T. p, 168-69}. She described the
Defendant's penis as follows: "lt was the same color as his normal skin. You could see
the veins. And at the end it looked different, and there was a hole at the end of lt",
(4/23/12N.T. p. 170). S- attestedtnather uncle would hold her legs open with his
hands and put his mouth and tongue on her private parts, "On. the front, inside and
outside." (04/23/12 N.T. p. 171-73). She also described the Defendant's action when
masturbating (putting his hand up and down on his pents), moaning and white discharge
Plymouth.
S-
coming out of his penis onto toilet paper that he was holding. (04/23/12 N.T. p. 174-75)
testified that she was also sexually assaulted in her uncle's bedroom in
She again described the layout of the rooms and stated that her uncle
1
Carol Hann was the co-defendant of Defendant herein she was convicted by a Jury on December 12, 2007 of Rape
of a Chlld, Incest and other charges,
2
The child was the victim In the subsequent crlmlnal trfat wherein the Defendant and carol Hann were convicted.
5
.·-;·-:-_._·:· ·.·.:··
Circulated 05/29/2015 01:27 PM
touched her in the manner described approximately ten (10) times. in all. (04/23/12 N.T.
,
p, 176-77). ~ attested that the last time her uncle touched her was when she four
(4) years old and that she did not tell anyone that It happened because she wanted to
forget about it and was. embarrassed. s:•• stated that she did. not want to do these
things but she trusted her uncle at the time. She eventually told her sister when she was
eight (8) years old. (04/23/12 N.T. p. 178).
M seventeen ( 17) years old at the time of trial, testified that she was
around six (6) years old when her uncle made would make her watch chlld pornography
with him from his computer. She recollected thathewould make. herslt on his lap while
he watched the child pornography and then he would take her upstairs to his room.
(04/23/12 N.T. p. 210-211 ). She described the pornography as children and adults
touching each other. Once upstairs, M .. testified that the Defendant would take her
clothes off and touch her vagina with his tongue and fingers. He made her rub his penis
with her hands and put his penis In her mouth. (04/23/12 N.T. p. 210-213). She
recollected that he told her not to tell anyone and that she did not know It was wrong.
Morgan stated that the sexual assaults occurred more than five (5) times. (04/23/12
N. T. p. 218).
S A § and Mc Q Us father testified that In 2009 his daughter ~ told him
that Uncle Bobby had touched her. He indicated that he asked S
she told him what happened to her. He went to the police one week after M•1••
'disclosed. (04/23/12 N.T. p. 234-36). He testified that his daughters would go back and
forth between the shared home and that the Defendant was the sole supervisor of his
daughters at times.
6
', ... ' . , .· ' ~ '. ~ .· ' -,
,, . :) :
Circulated 05/29/2015 01:27 PM
· Oetectve Captain Wiiiiam Shultz of the Nanticoke police department investigated ·
'
the allegations after he received a call from their father on August 2, 2010. ·on August
19, 2010, Detective Shultz and others interviewed the children at the Child Advocacy
Center In Wilkes-Barre. · The girls cried and were afraid that no one would bellevs them.
The father was upset and the mother would not cooperate or get Involved because she
did not believe them. (04/23/12 N.T. p. 2p5-58).
The Defendant testified In his defense. He testified that the girls often came to
his house to play with his son. He was never alone with the girls and he Is Innocent of
all crimes charqed .. On cross-examination, he agreed that sometimes. he was the only
adult watching the girls and that It is possible that he had access and opportunity to
molest the girls. He thought the girls came forward with these allegations because they
were mad at his wife. (04/23/12 N.T. p. 326;.32).
Summary of Factual· History of Case No. 2500 of 2011:
On December 7, 2012, the Jury rendered a verdict regarding the Defendant,
Robert Caravella on · a second criminal action Involving his minor son. This trial
occurred after:the completion of the jury trial wherein the Defendant was found guilty of
multiple accounts of sexual assault wherein his two minor nieces where the victims.
On Case 2501 of 2011, the Defendant, Robert Caravella, was tried along with his
wife, Carol Ann Hann, who was charged with having a sexual relationship with her son,
hereinafter referred to as "Child". The incestuous relationship began when the Child
was··elght (8) years old and·continued until he was twelve (12) years of age. The-sexual
relatfonship was not discovered until several months after the Child was removed from
the couple's home due to the unsanitary and deplorable conditions at the child's
7
· . .:'. · '. ,.<·::
. J' :. ..... . .·.·,·· .
Circulated 05/29/2015 01:27 PM
residence. At the time of his removal from the residence, the house was in a
deplorable condition in that It overwhelmingly smelled of human urine and .the walls,
carpet and the sink were vlslbly filthy. There was garbage strewn throughout the
residence, rotten food on the kitchen counters and small flles and random insects flying
throughout the kitchen. The house was also infested with cats that Defendant would
catch and raise. The floors were covered in dirt and filth and were sticky to the touch.
(12/12/12 N.T. p. 84-87; 103-107). The Child was covered in dirt and smelled of body
odor and urine. The officer required the Chlld to take an Immediate shower at the local
ambulance company due to .the overwhelming smell. The Child was taken into
protective custody by Luzerne County Chlldren & Youth and at the request of Ms. Hann,
the Chlld went to live with her female cousin, Patricia Paci. (12/12/12 N.T. p. 89-90;
107-08).
The Child attested that when he resided with his parents he rarely bathed or
showered and recalled showering once a month. He rarely brushed his teeth, did not cut
his own food, and did not get dressed or 'Change his clothes for significant periods of
time. The Child testified that he ate with his hands. He noted that he, his father and his
autistic uncle would urinate on the floor In the house. He also recollected having flea
bites, especlally during the summer months. (12/12/12 N.T. p. 173-76)
Upon residing with Ms. Paci, the Child ate with his hands, did not know how to
use a knife, shower, brush his teeth, button, zip or tie. The chlld's eyes were sensitive
· ·tc:f light and he needed glasses. · Although his parems'ctalmsd he was cyber schooled
through Commonwealth Connections Academy, the Child did not know how to use the
computer for school work but stated that he knew how to use the computer to watch
8
Circulated 05/29/2015 01:27 PM
pornography. The Child masturbated In front of people on the outside of his clothes and
' .
stared at women's chests. When he would get mad at Ms. Paci, he would urinate on
the floor and on one occasion killed Ms. Paol's cat. (12/12/12 N.T. p. 249-54; 264).
In January of 2011, when Ms. Paci turned on the shower for the Child, he pulled
down his pants and underwear and asked Ms. Paci If she would be his mother. After
Ms. Paci scolded the Child for his actions, she explained that mothers do not have
sexual relations with their children. The following day, Ms. Paci enrolled the Child In
therapy at the Children's SeNlce Center. (12/12/12 N.T. p. 269-70).
At trial, the Child testified that he. had a sexualrelatlonshlp with his mother since
he was eight (8) years old. (12/12/12 N.T. p. 181). His father, the Defendant, Robert
Caravella, began showing him pornography at the age of seven (7) and on his eighth
birthday his father called him upstairs to have sex with his mother. (12/12/12 N.T. p.
180-81). He attested that he had sex with his mother approximately four (4) times a
week usually while his father observed. He noted that his father watched the sexual
acts and coached him as to how to better perform. (12/12/12 N.T. p. 181-82). He
further testified that there were times when his mother forced him to have sex and out of
anger he would kill one of tier cats. In detail he explalned how he boxed the cats until
they died. {12/12/12 N.T. p.185-87).
The Defendant testified that he never showed pornography to his son. He
testified that it was Impossible for his wife to have sexual relations with their .son
because his wife.said It never-happened. ,,,,::.··,.·.
9
. .
.. ·. ; . ... • :. • f -. ~ ,· . ,· .
. ..
·.1.
""; . .... ·. _·: . '· ·-·.·. •i. __
•.
. . }' :
Circulated 05/29/2015 01:27 PM
Issues on Appeal in Case No. 1431 of 2011:
The Defendant raises twenty-two (22) Issues for Appeal. None of the issues
raised, however, have any merit. Every one of the twenty-two (22) Issues are
addressed below except for those boilerplate allegatlons of error set forth in paragraphs
3-7, 12, 16, and 21 which were either not raised by defense counsel and ruled upon by
this Court or not preserved with an objection and are therefore waived.
The Defendant argues that this Court erred when it denied his request for
psychological and psychiatric examinations of the child victims. The Defendant alleges
In his Statement of Errors in paragraphs 1 and 2 that:
The Court erred when It denied the Defendant's Motion that the Court
order psychological and psychiatric examinations ofthe-al/eged chlld
victims to assess their competency to testify In this case and to
advise the Court as to whether the children were prone to lie or
assess their rellablllty as factual witnesses to testify In this case.
Defendant's request for a psychiatric examination of the child victims, however,
was properly denied. As noted by the Court, other than his request for the examination,
the Defendant failed to provide a compl?IJtng reason or a substantial need for the
psychiatric examination. Com. v. Baich, 2009 Pa. Super. 195, 982 A.2d 102, 110 (Pa.
Super. Ct. 2009). (2/17/12 N.T. pp. 7·12). · Defendant's request for a psychiatric
examination of the chlld victims was, therefore, properly denied.
Defendant's Statement of Errors set forth In paragraphs 8-11; allege that this
Court erred In failing to Instruct the jury regarding lack of prompt complalnt. Defendant's
aUegations of error, however, are without merit. . This ..,Qourt did give the Jury instruction
regarding the failure to make a prompt complalnt. (2/17/12 N.T. pp. 350-351 J 372, 448-
448). Therefore, the errors Defendant raises In paragraphs 8-11 must fall.
10
Circulated 05/29/2015 01:27 PM
~rrors · raised by Defendant in paragraphs 13, 17-19 must also fall. Defendant's ·
arguments of error go to the sufficiency of the evidence.
In reviewing sufficiency of evidence claims, the Superior Court must determine
whether, viewing all of the evidence at trial, as well as all of the reasonable lnfer~nces
to be drawn therefrom, in a light most favorable to Commonwealth, the jury could have
found that each element of offense was proven beyond a reasonable doubt, and both
direct and circumstantial can be considered equally when assessing sufficiency of
evidence. Com. v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1158 (1995). There Is no
question here that· when ·viewing the evidence In a light most favorable to' the
Commonwealth that there was sufficient evidence to establish Defendant's guilt on all
charges beyond a reasonable doubt. Defendant's claims of alleged error therefore must
fail.
In paragraphs 14 and 22, the Defendant clalms that this Court erred when It
classified the Defendant as a sexually violent predator and also claims this Court erred
in the process used to find the Defendant a sexually violent predator. Since the
Defendant was sentenced In both cases at the same time and the Defendant raised the
: . .
same error in paragraph 14 as he did in paragraph 22 in Case No. 2500 of 2011 below,
the reasoning set forth In Case No. 2500 is Incorporated herein by reference as though
set forth In Its entirety herein In response to the alleged error in paragraph 14.
With respect to the alleged error in paragraph 22, alleging that this court erred In
the process used to find the"Defendant a sexually violent predator, this Court followed
Pennsylvania law. 42 Pa. C.S.§ 9799.10, et seq. Pennsylvania law requires that after a
conviction of a sexually violent offense, but prior to sentencing, the court shall order the
11
···.'!.
.. -~ .... : .: ·. ·.- ..
Circulated 05/29/2015 01:27 PM
. . .
Individual to be assessed by the Sexual Offenders Assessment Board to determine if
'
the individual meets the legal criteria to be designated a sexually violent predator. 42
Pa.·c.s.§ 9799.24.
The sentencing of the Defendant in this matter was continued upon the
Defendant's request several times so the Defendant could attain his own expert on the
Sexual Offender recommendation. The Defendant filed several continuations In that the
he could not locate a defense expert and then to waft for completion of the evaluation.
At the time of sentencing, the Defendant did not present the long awaited expert report
and testified on his own behalf as to the recommendatlons of the Sexual Offender
Assessment Board. After a lengthy hef;lrlng, the court found the Defendant to be a
Sexually Violent Predator.
Since this Court applied the law as written, and accommodated the Defendant's
numerous request for continuances, this Court dld not err in the process used to find the
Defendant a sexually violent predator. Based upon the foregoing, Defendant's
allegatlons of error must be denled.
The Defendant claims In paragraph· 15 that this court erred when it denied or
. .
refused to ask several of the volr dire questions proposed by the Defendant. The scope
of volr dire examination of the Jury is for the sound discretion of the trial court.
Commonwealth v. Lark, 504 A.2d 1291, 350 Pa. Super. 558, 565 (1986). (citation
omitted). Only a gross abuse of discretion w!II result In the trial court being overruled.
ta:': ~·-
...,.:,..,· ...
During thls Court's review of Defendant's proposed voir dire, defense counsel
agreed that his proposed questions In one through flve were already covered in the
12
Circulated 05/29/2015 01:27 PM
. general Instruction. (04/23/12 N.T. p. 6). Defense· counsel otherwise objected to this
,
Court denying his volr dire questions 6-91 111 13~ 15 arid 17-20 claim Ing that the Court's
ruling prevents him from being able to Intelligently exercise the Defendant's right to
challenge for cause and also to intelligently use his allotment for peremptory challenges.
(04/23/12 N.T. pp. 7·10).
In addition to this Court providing general Instructions, this Court did adopt
Defendant's voir dire questions, 1, in part; .16 and 21. This Court's refusal to permit the
overly specific questions proposed by Defendant was not a gross abuse of discretion as
this Court did ask the prospective jurors generally whether they, or a friend or family
member had been a victim of a crime, and whether they questioned their ability to be
fair because the charges concerned sexual conduct with a minor. Additionally, this
Court explored the possible bias of some of the prospective Jurors by questioning them
Individually at sidebar.
There is no question that this Court's volr dire process was designed to secure a
competent) fair, impartial and unprejudiced jury for the Defendant. For example, the
questions asked by this Court during volr dire and at sidebar of one of the jurors
revealed that Juror number 7 suffered from child abuse, her daughter was abused as a
child and her granddaughter was raped when she was a senior In high school.
(04/23/12 N.T. pp. 65-66). Juror number 7 was dismissed for cause. The dismissal of
Juror number 7 demonstrates the effectiveness of this Court's voir dire process In
dismissing a juror who may not, have been fair, Impartial and unprejudiced based-upon
her llfe experiences.
13
. . : ..
.....
Circulated 05/29/2015 01:27 PM
Next, In paragraph . 20 the Defendant argues that the Court erred in not
dismissing the criminal charges · against the Defendant, when the Commonwealth's
testimony was almost devoid of any specific dates, from which the defendant might be
able to raise an allbl defense. Defendant argues that the testimony that the crimes. took
place "between January 1, 2002 and January 11 2005'\ but without more specificity,
made a possible defense of alibi impossible.
When the Commonwealth alleges a course of conduct as It did In this case,
specific dates are not required. When "the precise date of [an offense] is not known or
. . . .
If the. offense Is a· continuing one, N Rule 560(8)(3) of the Pennsylvania Rules of Criminal
Procedure . provides that a criminal Information slgned by the attorney for the
11
Commonwealth shall be valid and sufficient In law if It contains ... an allegation that It
was committed on or about any date fixed within the statute of llmltatlonsl.]" Moreover,
the Commonwealth Is afforded greater latitude where the offense is a continuous course
of conduct Involving a child especially when the course of conduct ls alleged to have
occurred over a period of months or years. Commonwealth v. Brooks, 7 A.3d 852, 858
(Pa.Super, 2010).
Addltlonally, the lack of specificity of dates has not affected the Defendant's
abllity to present an alibi defense because alibi has never been an Issue. The alibi
defense was never asserted by Defendant. The Defendant has simply argued that the
offenses dld not happen. The testimony that was established during trial did not make It
lmposslble for him to be the perpetrator. Where a defense rests on timing rather than
location, It Is not considered an alibi. Commonwealth v. Siieo, 32 A.3d 753, 767 (Pa.
Super.2011 ). Thus, Defendant's alleged error in paragraph 20 must fail.
14
Circulated 05/29/2015 01:27 PM
Issues on Appeai In Case. No. 2500. of 2011:
,
The Defendant raises twenty-seven (27) issues for Appeal In Case No. 2500 of
2011. None of the issues raised, however, have any merit. Each of the twenty-seven
(27) Issues ls addressed below.
1. The Defendant argues that he was denied a fair trial when the Court
permitted the Commonwealth to Introduce evidence that the
Defendant's son killed cats while llvlng with his parents as a result of
the alleged abuse.
The Defendant argues that he was denied a fair trial when the Court permitted
the Commonwealth ·10 introduce evidence of the Child kllllng cats. The Defendant, ·
however, never objected to the Commonwealth's Introduction of evidence that the.
Defendant's son kflled cats while living with his parents as a result of the alleged abuse.
Consequently, the Defendant waived his right to appeal the Commonwealth's
introduction of evidence that the Chlld killed his mother's cats. . Issues must be
preserved at each and every stage of review; otherwise, they are deemed waived and
cannot subsequently be raised on appeal. Commonwealth v. Burchard, 349
Pa.Super. 456, 459, 503 A.2d 936, 937 (1986).
Next, the Defendant argues that the Court erred when It found the Child
competent to testify.
2. The Court erred when It denied the Defendant's Motion that the Court
order psychological and psychiatric examinations of the Chlld to
assess his competency to testify.
3. The Court erred when It denied the Defendant's Motion that the Court
order psychological and psychiatric examinations of the Child to
·assess whether thechlld was prone to lie or· his rellablllty as a factual ·· .: ··-··
witness to testify In the case.
4. The Court erred In finding the Child competent to testify, even after
the Commonwealth provided copies of records and reports of
Interviews wherein the Child contradicted the accusations previously
made concerning the Instant charges against the Defendant.
15
Circulated 05/29/2015 01:27 PM
5. The Court erred In f lnc:Ong the Child competent to testify, even after
the Commonwealth provided copies of records and reports of
Interviews wherein It was disclosed that the Child was promised that
he "would be able to testify In a private room alone" if he agreed to
testify against his parents on the current charges.
The Court did not err when It denied Defendant's request for psychologlcal and
psychiatric examinations and found the Child competent to testify. The general rule in
Pennsylvania Is that every person Is presumed competent to be a witness. Pa.R.E.
601(a). Com. v. Delbridge, 578 Pa. 641, 662, 855 A.2d 27, 39 {2003). Presently, the
prevailing rule is that competency Is presumed where the child Is more than 14 years of
age. Rosche v. McCoy, 397 Pa. 615,· 621, 156.A.2d 307, 310 (1959). The Chlld herein
was 14 years old at the time of trial. The Child was, therefore, presumed competent to
testify.
The party alleging a witness Is incompetent to testify must prove that contention
by clear and convlnclnc evidence. Com. v. Bolch, 2009 Pa. Super. 195, 982 A.2d 102,
110 (Pa. Super. Ct. 2009). A court, therefore, ought not. to order an Involuntary
psychiatric examination of a witness unless the record unequivocally demonstrates a
compelling need for the examination. Id. The basis of the Defendant's request for a
psychiatric examination of the Child was that the Child made some contradictory
statements. Contradictory statements are subject to cross examination and do not
unequivocally demonstrate a compelling need for a psychological or psychiatric
examination. Therefore, Defendant's request was properly denied .
. , i'n alleged error 6, Defendant argues that the Court'erred when It failed to dismiss
the charges against the Defendant based upon promises made to the Chlld that ha
would be able to testify In a private room.
16
Circulated 05/29/2015 01:27 PM
6. The Court erred In falling to dismiss· the charges against the
Defendant after learning that the Chlld was promised that he "would
be able to testify In a private room alone" If he agreed to testify
against his parents on the current charges.
The record is clear that the child was never promised that he would be able to.
testify in a private room alone if he agreed to testify against his parents on the current
charges. Detective Parker of the Luzerne County District Attorney's Office spoke to the
Child about testifying In court. Although the Child may have thought that he would be
able to testify in a private room alone, Detective Parker told the Child that was not what
would happen as he would have to most likely testify In front of his parents, however, he
would be able to look the other way and not look atthem. (07/13/12 N.T. p. 31).
(emphasis added). Since the Involvement of Detective Parker and Attorney Roberts in
this case, the Child knew that he would have to testify in open court. The Child testified
at the preliminary hearing in front of his parents so he did know that he was going to
have to testify at trial In front of his parents. (07/13/12 N.T. p. 33). Therefore, the
Defendant's argument that the Court should have dismissed the charges for promises
made to the Child was properly denied as no promises were made- to the Child
regarding his ability to testify In a private room.
Next, the Defendant argues the Court erred In permltting the Chlld and Patricia
Paci to testify.
7. The Court erred In permitting the Child and Patricia Paci to testify
after It was disclosed that the Child had complained that Patricia Paci,
who was charged with the Child's custody and care, was Improperly
cernmunlcatlnq with him concerning the case and had to be warned
about her'lnteHerenc1f ln the case. ··
Defendant's argument has no merit. There was no evidence that Patricia Paci
was improperly communicating with the Child concerning the case and that she had to
17
Circulated 05/29/2015 01:27 PM
be warned about her interference in the case. To the contrary, Ms. Paci inquired of
Assistant District Attorney Roberts if they should be discussing the case with the Child.
Attorney Roberts told them that she did not want them talking to the Child about the
case and that the only people that he should be talking to about the case are his
counselors. (07/13/2012 N .T. p.30).
Defendant also argues that the Court erred when it denied the Defendant's
requests for discovery.
8. The Court erred ln denying the Defendant's Motion for Discovery of
certain records and materials In the possession of the Luzerne County
· · Child Advocacy Center Involving the Child.
9. The Court violated the Defendant1s due process rights and right of
confrontation provisions of the Pennsylvania and United States
Con.stltutlons when It denied the Defendant the right to Impeach the
credlblllty of the Child, Patricia Paci and other Commonwealth
witnesses with the records and materials in the possession of the
Luzerne.County Child Advocacy Center Involving the Chlld which may
have been ref Jectlve of the motive or bias of the Chlld and Patricia
Paci.
10. The Court erred In denying the Defendant's Motion for discovery of
records and materials In the possession of the Wyoming County
Children and Youth Services Involving Patricia Paci because Patricia
Pael's credlblllty was In Issue.
11, The Court violated the Defendant•s due process rights and right of
confrontation provisions of the Pennsylvania and United States
Constitutions when It denied the Defendant the right to Impeach the
credlblllty of Patrf cla Paci with the records of the Wyoming County
Children and Youth Services which may have been reflective of the
motive or bias of Patricia Paci.
12. The Court erred In denying the Oefendant•s Motion that the Court
Order the release and production of any Internal Investigations,
records, cltlzen's complaints and/or personnel files of the agents of
the Luzerne County Children & Youth Services and the Luzerne
County Child Advocacy Center, as such records were relative to the
credlblllty and truthfulness of representatives and employees of the
agency who were or might have been called as witnesses In this
matter.
18
Circulated 05/29/2015 01:27 PM
13. The Court erred In not conducting an in camera examination of the
Luzerne County Chll_dren & · Youth Services and the Luzerne County
Child Advocacy Center prosecution files and reports to determine
their relevance within the meaning of the law and what may have been
discoverable.
14. The Court's denial of the Defendant's discovery· requests of the
Luzerne County Children & Youth Services and the Luzerne County
Child Advocacy Center records and the Court's refusal to conduct an
In camera Inspection violated the Defendant's rights under the 5t11,
101\ 11 lh, 15th and 141h Amendments to the United States Constitution
and the Pennsylvania Constitution - - his right to due process, to a fair
trial, to the effective assistance of counsel, to prepare a defense, to
confront and cross-examine witnesses and Impeach their credibility.
The pre-trial record i$ clear that all of the Luzerne County Children and Youth
Services CPS flle records as well as ,he DVD's from the Child Advocacy Center that
were in the possesslon of the Commonwealth were provided by the Commonwealth to
counsel for Defendant. To further the Defendant's request for discovery, the trial court
did provide defense counsel with two Orders for additional discovery of Luzerne County
.Children and Youth Services records. (07/13/2012 N.T. pp. 3-10).
With respect to the Defendant's Motion for Discovery of records and/or
complaints against Luzerne County Chlldren and Youth Services workers and his
request for records from the Luzerne County Child Advocacy Center, the trial court
properly denied Defendant's Motions and informed the Defendant that the records from
those agencies had to be subpoenaed. (07/13/2012 N.T. pp.s, 22).
With respect to Defendant's Motion to obtain records from Wyoming County
Children and Youth Services pertaining to the Chlld's caretaker, the Motion was
properly denied. Oefense -counsel·-acknowledged that he did not know If the records,
existed, that the records would have nothing to do with the alleged victim and that the
records were from sixteen (16) years ago. (07/13/2012 N.T. pp. 4-7).
19
Circulated 05/29/2015 01:27 PM
Thus, based , upon the pre-trial record, the errors raised by Defendant in
paragraphs 8 through 14 have no merit. It Is not the responsibility of the Trial Court to
conduct discovery for the Defendant or permit a fishing expedition for records that are
remote and protected from disclosure.
The Defendant also argues that the Court erred when It failed to Instruct the jury
regarding the Child's lack of prompt complaint. Specifically, the Defendant argues:
15. The Court erred In not Instructing the Jury that the testimony of the
Child was rendered· suspect because of lack of prompt complaint and
bias against the Defendant.
16. The Court erred In not Instructing the jury that the lack of prompt
complaint by the Chlld Is a factor that the Jury inust consider as to the
sincerity of the Child's complaint.
17. The Court erred In not Instructing the Jury that the lack of prompt
complaint by the Child may Justifiably produce doubt as to whether
the offense Indeed occurred, or whether It was a recent fabrication of
the Child.
18. The Court erred In not Instructing the Jury that the Chlld1s motive In
making the complaints against the Defendant following his
considerable period of silence was relevant as affecting the Child's
veracity.
The Defendant's clalms of error In paragraphs 15 through 18 must also fail. As
per defense counsel's request, the Court read the instruction to the Jury on the _Child's
delay in making a prompt complaint. (12/12/12 N.T. pp. 423-432, 490-491). The
Defendant never objected to the proposed jury Instruction nor proposed that the jury be
Instructed in any other way. A defendant must object to a Jury charge at trial, lest his
challenge to the charge be precluded on appeal. Com. v. Corley, 432 Pa. Super. 371,
.••• •• :.•'.# ...
381, 638 A.2d 985, 990 (1994). Therefore, Defendant's challenge to the jury Instruction
as given must be precluded on appeal.
20
.. •
:,.
··
.•
.. ·.
· .. ·,•: ·:: .. :-· _.- ... ~·' ..... . -/,'·
. .~. : . '... . . .'_ .~ .·.. ·.. ·. ·: .
Circulated 05/29/2015 01:27 PM
The. Defendant1s additronal
, claims of error alleged In paragraphs·
.
19, 20
.
and 21
must also fail. Defendant's arguments go to the sufficiency of the evidence.
19. The Court erred In not finding that the charges had been fabricated by
the Chlld and Patricia.Paci and that the Defendant was Innocent as a
matter of law.
20. The Court erred In not rullng that the evldence was Insufficient as a
matter of law to establish the Defendant's guilt beyond a reasonable
doubt on the charges.
21. The Court erred In not finding that the Defendant was Innocent as a
matter of law as a result of the Childs In-court testimony that he lled
numerous times reginalng his statements to prosecutors ,1nd child
welfare authorities.
·In reviewing sufficiency of evidence claims, the Superior Court must determine
whether, viewing all of the evidence at trial, as well as all of the reasonable Inferences
to be drawn therefrom, In a light most favorable to Commonwealth, the jury could have
found that each element of offense was proven beyond a reasonable doubt, and both
direct and circumstantial can be considered equally when assessing sufficiency of
evidence. Com. v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1158 (1995). There Is no
question here that when viewing the evidence In a light most favorable to the
I. • I·
Commonwealth that th~re was sufticient evidence to establish Defendant's· guilt on all
charges beyond a reasonable doubt. Therefore, Defendant's claims of alleged error
must fall.
Next, the Defendant argues that the Court erred when It classified the Defendant
as a sexually violent predator.
22. The Court erred In finding that the Defendant be classltled as a,- .. ,,,,.
sexually violent predator.
To help determine if a Defendant should be classified as a sexually violent
predator, the trial Judge orders an assessment to be done by the Sexual OHender
21
Circulated 05/29/2015 01:27 PM
Assessment. Board ("SOAB''). 42 Pa. C.S. §9799.24. At a hearing prlor to sentencing
the Commonwealth must establish by clear and convincing evidence that the Defendant
has been convicted of a statutorily specified offense and has been determined, through
a statutorily designated process, to have a mental abnormality or personality disorder
that makes the defendant likely to engage in predatory sexually violent offenses. 42
Pa.C.S.A. § 9799.12, "Sexually violent predator."
At the Sexual Offender Assessment Board Hearing in this case, It was revealed
that the Defendant retained an expert of his own, Dr. Foley, · and that Dr. Foley
concurred with · the Sexual Offender Assessment Board's determination that the
•
Defendant met the statutory threshold for designation as a sexually violent predator in_
Pennsylvania. (10/28/13 N.T. p. 6). However, when the Defendant was asked to
further stipulate to the Sexual Offender Assessment Board's report dated July 5, 2012,
the Defendant would not stipulate to the findings within the report and the Defendant
requested a hearing. (10/28/13 N.T. p. ~1).
At the hearing, the Commonwealth presented the expert testimony of Ms. Paula
Burst. Ms. Burst prepared a report on behalf of the Sexual Offenders Assessment
. .
Board dated July 5, 2012. Although the Defendant was offered the opportunity to
participate In the report, he declined to participate. In connection with the preparation of
her report, Ms. Burst reviewed the Sexual Offender Assessment Board Investigator's
report; the Luzerne County Court Order for the assessment; the criminal information
regarding ·Case No. 1431 of 2011; the police criminal complaint and affidavit of probable
cause; Nanticoke police incident report, Child Line report; and Child Protective Service
Investigation reports. (10/28/13 N.T. p.18).
22
·.,,·:-
-.,,. ···-.-
Circulated 05/29/2015 01:27 PM
Ms. Burst testified that when assessing whether or not a Defendant Is a sexually .
violent predator, she must take Into consideration two statutory criteria. (10/28/13 N.T.
pp. 18-20). The statute requires her to address whether or not the Defendant
possesses either a mental abnormality or personality disorder that makes it likely that
they will engage In predatory sexual behavior. (10/28/13 N.T. pp. 18-20).
Ms. Burst testlfled that the Defendant met the statutory criteria to be classified as
a sexually vfolent predator. Ms. Burst testified that the Defendant met the full diagnostic
criteria for the mental abnormality of pedophllia as the Defendant assaulted two minor
victims, whose ages span between· one and nine In total which meets the full
classlflcatlon for pedophilia. (10/28/13 N.T. p. 19). Ms. Burst testified that the essential
features of pedophllla are over the course of at least six months recurrent Intense
sexually arousing fantasy, sexual urges or behaviors involvlng sexual contacts with a
prepubescent child under the age of thirteen (13). Secondly, Ms. Burst explained that
the person has acted on these sexual urges or fantasies; and, thirdly, the person rs at
least sixteen (16) years of age and at least five years older than the child. :.-Ms. Burst
further testified that the Defendant also met the second prong of the assessment
criteria, as the Defendant's offenses and behavior was predatory fn nature. ( 10/28/13
N.T. p. 20). She testified that In her opinion he will reoffend in a sexual manner as he
meet the diagnostic criteria for pedophilia, and pedophilia is considered an acquired or
congenital condition that Is a life-long chronic condition. His diagnosis of pedophilia
predisposes hlm towards commlttlnp-sexual offenses in the future, and his diagnosis if'···'···
pedophilia means that he has an Internal drive towards sexual offending.
23
Circulated 05/29/2015 01:27 PM
. . . .
Based upon the credible expert oplnlon testimony of Ms. Brust of the Sexual ·
Offender Assessment Board, as well as the September 16th letter and the statements of
counsel that the court-appointed defense expert concurred with the SOAB's
detennination that the Defendant met the statutory threshold for designation as a.
sexually violent predator, this Court found Ms. Burst established by clear and convincing
evidence that the Defendant met the two criteria necessary to be deemed a sexually
violent predator pursuant to the Pennsyfvanla statute. (10/28/13 N.T. pp. 33-34).
Therefore, based upon this Court's findings, the Court did not err when it
: classified the Defendant as a sexually violent predator. · · ·
The Defendant also claims the Court committed errors tjurlng volr dire of the
Jurors and when giving Jury Instructions.
23. The Court erred In refusing to Inquire of potential Jurors the questions
submitted In writing by the Defendant, or In the alternative, to permit
defense counsel to do so.
24. The Court erred In refusing to submit the Instructions to the Jury at the
close of evidence that were submitted In writing by the Defendant,
pursuant to Pa. R.Crlm.P. 647.
The Court did not err when questioning or Instructing the jury. Nor did the
Defendant object to this Court's questioning or Instructing of the Jury. Therefore,
any claim that the Court erred Is without merit and waived.
The Defendant's arguments in 25, 26 and 27 also go to the sufficiency of the
evidence.
25. The Court erred In denying the Defendant's Post-Trial Motions for a
. "·"Judgment of acquittal or a new trial because the verdict was based on
Insufficient evidence and/or was against the weight of the evidence.
26. The evidence submitted at trlal by the Commonwealth was Insufficient
as a matter of law to establish the Defendant's guilt beyond a
reasonable doubt on the charges.
24
· ... ;·.·:
Circulated 05/29/2015 01:27 PM
· 27. The Court erred In denying the Defendant's Motions for judgment of
acquittal or 'a new trial because the Commonwealth'.s principal
witnesses gave contradictory and Inconsistent testimony concerning
material elements of the crimes charged thereby making the Jury's
verdict based on lnsufffclent evidence.
Again, in reviewing sufficiency of evidence claims, the Superior Court · must
determine whether! viewing all of the evidence at trial, as well as all of the reasonable
Inferences to be drawn therefrom, In a light most favorable to the Commonwealth, the
jury could have found that each element of offense was proven beyond a reasonable
doubt, and both direct and circumstantial can be considered equally when assessing
sufflclency of evidence. Com. v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1.158 (1995).
There Is no question that when viewing the evidence in a light most favorable to the
Commonwealth here, that there was sufficient evidence to establish Defendant's guilt
on all charges beyond a reasonable doubt. Therefore, Defendant's claims of alleged
error must fall.
END OF OPINION
.
-~ '
,·~ ~- .
25