Commonwealth v. Strafford

J-S83003-17
2018 Pa. Super. 223
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES ALBERT STRAFFORD, :
:
Appellant : No. 3827 EDA 2016
Appeal from the Judgment of Sentence October 20, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0003932-2015
BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.
OPINION BY DUBOW, J.: Filed: August 6, 2018
Appellant, James Albert Strafford, appeals from the Judgment of
Sentence entered by the Delaware County Court of Common Pleas following
his convictions after a jury trial of Indecent Assault of a Person less than 13
years of age, Corruption of a Minor, and Involuntary Deviate Sexual
Intercourse with a Child.1 After careful review, we affirm.
Briefly, between June 2013 and December 2014, Appellant sexually
abused the eight-year-old victim. Appellant, a friend of the victim’s cousin
and known to the victim as “Jay,” was a frequent overnight guest in the
victim’s home. In December 2014, the victim spontaneously disclosed the
abuse to his older brother and then to his mother—while Appellant was in
____________________________________________
1 18 Pa.C.S. § 3126(a)(7); 18 Pa.C.S. § 6301(a)(1)(ii); and 18 Pa.C.S. §
3123(b), respectively.
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the house. The victim’s mother reported the abuse that night to
Pennsylvania State Police, and the victim provided a video-recorded
statement to a child forensic interviewer on December 8, 2014.
The Commonwealth charged Appellant with, inter alia, the above
offenses. On March 18, 2015, the Commonwealth filed (1) a Petition to
Admit Out-of-Court Statements Under the Tender Years Hearsay Exception,
and (2) a Motion to Allow a Child Witness to Testify Under Pennsylvania
Uniform Child Witness Testimony by Alternative Methods Act. Following a
hearing, the trial court granted the Commonwealth’s Motions.
On August 3, 2016, a jury convicted Appellant of Indecent Assault of a
Person less than 13 years of age, Corruption of a Minor, and Involuntary
Deviate Sexual Intercourse with a Child.
On October 20, 2016, the trial court imposed an aggregate term of six
to twelve years’ incarceration, followed by five years’ probation. At the
time, Indecent Assault of a Person less than 13 years of age and Involuntary
Deviate Sexual Intercourse with a Child were enumerated Tier III offenses
under the Sexual Offender Registration and Notification Act (“SORNA”) and
required lifetime registration as a sexual offender. 42 Pa.C.S. § 9799.14(d);
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42 Pa.C.S. § 9799.15(a)(3).2 At sentencing, Appellant signed a notification
form stating that he understood his registration requirements.
On November 18, 2016, Appellant filed a Notice of Appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents three issues on appeal:
1) Whether the lower court erred in admitting the out of court
statements (including related audio recording and
contemporaneous writings) that the complainant allegedly
supplied to his brother, his mother, and to a forensic interviewer
since the time, content, and circumstances of those statements
did not demonstrate sufficient indicia of reliability as required for
the tender years exception to the hearsay rule?
2) Whether the lower court erred in permitting the minor
complainant to testify by contemporaneous alternative means
(closed circuit video) since it was not established that testifying
either in an open forum in the presence and full view of the
finder of fact or in [Appellant’s] presence would result in him
suffering from serious emotional distress such that it would
substantially impair his ability to reasonably communicate?
3) Whether the evidence is insufficient to sustain the convictions
for involuntary deviate sexual intercourse, indecent assault, and
corruption of minors since Appellant was not identified as the
offender beyond a reasonable doubt, especially where the
complainant was not asked to identify him, did not reference his
last name, and where no stipulation to identity was presented to
the jury?
Appellant’s Brief at 5.
____________________________________________
2 Corruption of a Minor was an enumerated Tier I offense under SORNA and
required 15-year registration as a sexual offender. 42 Pa.C.S. §
9799.14(b); 42 Pa.C.S. § 9799.15(a)(1).
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As an initial matter, we address an issue of first impression regarding
the legality of Appellant’s Judgment of Sentence.
Legality of Sentence
In his Reply Brief, Appellant challenges the legality of his sentence
based on Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (OAJC)
(holding that SORNA’s enhanced registration requirements are punitive and,
therefore, applying SORNA retroactively is a violation of the ex post facto
clauses of the U.S. Constitution and Pennsylvania Constitutions). Appellant
argues that his lifetime registration requirement—which he argues now
constitutes direct criminal punishment rather than a collateral civil
consequence in light of Muniz and Commonwealth v. Hart, 174 A.3d 660
(Pa. Super. 2017)—exceeds the lawful statutory maximum sentences
applicable to his convictions.3 Appellant’s Reply Brief at 1-4 (citing 18
Pa.C.S. § 1103 (entitled “Sentence of imprisonment for felony”)).4
____________________________________________
3 Based on this Court’s research, this appears to be an issue of first
impression post-Muniz.
4 On May 15, 2018, this Court issued a Rule to Show Cause directing the
Commonwealth to explain “why Appellant’s Judgment of Sentence should
not be vacated in light of [Muniz].” Rule to Show Cause Order, filed
5/15/18, at 1. On June 14, 2018, the Commonwealth responded that Muniz
is inapplicable because Appellant’s crimes were committed after SORNA’s
enactment. Response, filed 6/14/18, at 1-6. We agree. SORNA was
enacted in December 2012 and requires lifetime registration for Indecent
Assault of a Person less than 13 years of age and Involuntary Deviate Sexual
Intercourse with a Child. Because Appellant committed his offenses between
June 2013 and December 2014, after the effective date of SORNA, the
(Footnote Continued Next Page)
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This court may review issues regarding the legality of sentence sua
sponte. Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super.
2001). “We review the legality of a sentence de novo and our scope of
review is plenary.” Commonwealth v. Butler, 173 A.3d 1212, 1215 (Pa.
Super. 2017).
Appellant correctly observes that the Muniz Court found that the
registration requirement mandated by SORNA is punitive. See Muniz,
supra at 1218. We, thus, begin our analysis of Appellant’s challenge with a
review of various statutes and legal principles relating to punishments.
Our Supreme Court has explained the well-settled principle that the
General Assembly “has the exclusive power to pronounce which acts are
crimes, to define crimes, and to fix the punishment for all crimes. The
legislature also has the sole power to classify crimes[.]” Commonwealth v.
Eisenberg, 98 A.3d 1268, 1283 (Pa. 2014) (citation and quotation omitted).
Our General Assembly has authorized courts to impose specific
punishments when fashioning a sentence, and specified maximum terms and
amounts of those punishments. These categories of punishment include (1)
partial or total confinement, (2) probation, (3) state or county intermediate
(Footnote Continued) _______________________
application of SORNA does not run afoul of Muniz’s holding regarding the
violative application of SORNA’s punitive registration requirements to
offenders who committed crimes before 2012.
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punishment, (4) a determination of guilt without further penalty, and (5) a
fine. 42 Pa.C.S. § 9721.
With respect to the punishment of incarceration, 18 Pa.C.S. § 1103
governs the maximum authorized sentence of imprisonment for felony
convictions. By a separate statute, these maximum allowable terms also
apply to probationary sentences, a different category of punishment
authorized by the General Assembly. In 42 Pa.C.S. § 9754(a), the
legislature directed that “[i]n imposing an order of probation the court shall
specify at the time of sentencing the length of any term during which the
defendant is to be supervised, which term may not exceed the
maximum term for which the defendant could be confined, and the
authority that shall conduct the supervision.” Id. (emphasis added). Thus,
the legislature explicitly connected the authorized punishments of
incarceration and probation by statute.
However, most sentencing alternatives are not tied to the maximum
authorized term of incarceration. For example, the legislature has
authorized courts to include in sentences the requirement that a defendant
pay a fine or restitution. These categories of punishment are not limited by
the maximum period of incarceration; rather, the legislature set different
maximum authorized amounts of punishment a court may impose as part of
its sentence. See, e.g., 18 Pa.C.S. § 1101 (defining maximum fines); 18
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Pa.C.S. § 1106 (providing statutory scheme for restitution for injuries to
person or property).
In SORNA the legislature authorized courts to include periods of
registration as part of a sentence. Similar to the treatment of the payment
of fines or restitution, the legislature did not tie the period of registration to
the length of incarceration. See 42 Pa.C.S. § 9799.14 (“Sexual offenses and
tier system”); 42 Pa.C.S. § 9799.15 (“Period of registration”). SORNA’s
registration provisions are not constrained by Section 1103. Rather,
SORNA’s registration requirements are an authorized punitive measure
separate and apart from Appellant’s term of incarceration. The legislature
did not limit the authority of a court to impose registration requirements
only within the maximum allowable term of incarceration; in fact, the
legislature mandated the opposite and required courts to impose registration
requirements in excess of the maximum allowable term of incarceration.
Accordingly, we conclude that Appellant’s lifetime registration
requirement authorized by SORNA does not constitute an illegal sentence.
Appellant is not entitled to relief.
Tender Years Hearsay Act
Appellant asserts that the trial court erred in admitting the child-
victim’s out-of-court statements through the hearsay testimony of his
brother, his mother, and a child forensic interviewer pursuant to the hearsay
exception codified in the Tender Years Hearsay Act. Appellant’s Brief at 14-
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23. Appellant claims that there were not sufficient indicia of reliability to
meet the requirements of 42 Pa.C.S. § 5985.1(a)(1).
The “[a]dmission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.
Super. 2015) (en banc) (citations omitted). “Accordingly, a ruling admitting
evidence will not be disturbed on appeal unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support to be clearly erroneous.” Commonwealth v. Huggins, 68 A.3d
962, 966 (Pa. Super. 2013) (citation and quotation marks omitted).
The Tender Years Hearsay Act creates an exception to the general rule
against hearsay for a statement made by a child who was twelve years old
or younger at the time of the statement. 42 Pa.C.S. § 5985.1(a);
Commonwealth v. Barnett, 50 A.3d 176, 182 (Pa. Super. 2012).
Relevant to this appeal, a court may admit a child-victim’s out-of-court
statement for the truth of the matter asserted when “(1) the court finds, in
an in camera hearing, that the evidence is relevant and that the time,
content[,] and circumstances of the statement provide sufficient indicia of
reliability; and (2) the child [] testifies at the proceeding[.]” 42 Pa.C.S. §
5985.1(a)(1)-(2).
Pursuant to this statute, “indicia of reliability” include, inter alia, “the
spontaneity of the statements, consistency in repetition, the mental state of
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the declarant, use of terms unexpected in children of that age[,] and the
lack of a motive to fabricate.” Barnett, 50 A.3d at 182-83 (citations
omitted).
The Honorable Kevin F. Kelly, sitting as the trial court, has authored a
comprehensive, thorough, and well-reasoned Opinion, citing the record and
relevant case law in addressing Appellant’s evidentiary claim regarding the
child-victim’s out-of-court statements. After a thorough review of the
certified record, the briefs of the parties, the applicable law, and the trial
court’s Opinion, we conclude that there is no merit to Appellant’s evidentiary
claim on appeal. Accordingly, we affirm on the basis of the trial court’s June
26, 2017 Opinion. See Trial Court Opinion, 6/26/17, at 14-23 (concluding it
properly admitted the statements under Section 5985.1 because: (1) the
child-victim’s statements to his brother and mother were spontaneous and
impulsive; (2) the child-victim’s statements to the child forensic interviewer
were consistent with these prior spontaneous statements to his brother and
mother; (3) there was no suggestion that the child victim had any motive to
fabricate; and (4) the child victim testified at trial).
Child’s Testimony by Contemporaneous Alternative Method
In his next issue, Appellant claims that the trial court erred in allowing
the child victim to testify by closed-circuit television because the
Commonwealth failed to meet its burden of proving that testifying in
Appellant’s presence would have caused “serious emotional distress that
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would substantially impair his ability to reasonably communicate.”
Appellant’s Brief at 29. Rather, Appellant avers that the Commonwealth
merely showed that the child would be “agitated,” which does not meet the
applicable standard. Id.
42 Pa.C.S. § 5985 permits a court to conduct an in camera hearing to
determine whether a child victim should testify by contemporaneous
alternative method outside of the courtroom and the jury’s presence. In
order to allow this alternative method, the court must find “that testifying
either in an open forum in the presence and full view of the finder of fact or
in the defendant’s presence will result in the [child] suffering serious
emotional distress that would substantially impair the [child’s] ability to
reasonably communicate.” 42 Pa.C.S. § 5985(a.1). The court may observe
and question the child inside or outside the courtroom, or hear testimony
from a parent, custodian, or any other person that has dealt with the child
“in a medical or therapeutic setting.” 42 Pa.C.S. § 5985(a.1)(1)-(2).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the comprehensive and well-reasoned Opinion of the trial
court, we conclude that there is no merit to Appellant’s claim. Accordingly,
we affirm on the basis of the trial court’s Opinion. See Trial Court Opinion
at 7-14 (concluding it properly permitted the eight-year-old victim to testify
by closed-circuit television to avoid serious emotional distress because the
victim’s mother testified in detail about the victim’s ongoing behavioral
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issues after disclosing the abuse as follows: (1) experiencing frequent
nightmares; (2) sleeping in bed with his parents; (3) bedwetting at night;
(4) experiencing difficulty in school with obeying instructions from his
teacher and staying focused on assigned tasks, which requires additional
assistance at school; (5) becoming “very agitated” and experiencing “a
complete freak out” one day when the victim believed he observed
Appellant’s vehicle; (6) becoming “moody” when informed of his required
attendance in court; and (7) responding, when informed that Appellant may
be present in court for his testimony, that he did not want to see Appellant,
that he would “run out of the room” if he were present, and that if he even
saw Appellant he would either conceal his face or try to hide under a table).5
Sufficiency of the Evidence
Appellant avers that the evidence was insufficient to support his
convictions for Indecent Assault of a Person less than 13 years of age,
Corruption of a Minor, and Involuntary Deviate Sexual Intercourse with a
Child. Appellant’s Brief at 30-32. Appellant specifically challenges the
____________________________________________
5 Insofar as Appellant suggests that a child victim must essentially break
down in his presence before permitting testimony by contemporaneous
alternative method, we need not belabor the absurdity of this proposition
given our legislature’s clear policy expression in this regard. See 42 Pa.C.S.
§ 5981 (declaring the General Assembly’s intent to provide special
procedures as necessary in order to protect and to promote the best
interests of victims and material witnesses of this Commonwealth who are
under 18 years of age during their involvement with the criminal justice
system).
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element of identity insofar as the victim did not make an in-court
identification of Appellant as the perpetrator.
We review claims regarding the sufficiency of the evidence by
considering whether, “viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime beyond a reasonable
doubt.” Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014).
Further, a conviction may be sustained wholly on circumstantial evidence,
and the trier of fact—while passing on the credibility of the witnesses and
the weight of the evidence—is free to believe all, part, or none of the
evidence. Id. at 40. In conducting this review, the appellate court may not
weigh the evidence and substitute its judgment for the fact-finder. Id. at
39-40.
“A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have indecent
contact with the person[,] or intentionally causes the complainant to come
into contact with seminal fluid, urine or feces for the purpose of arousing
sexual desire in the person or the complainant and . . . the complainant is
less than 13 years of age[.]” 18 Pa.C.S. § 3126(a)(7).
Corruption of a Minor is defined, in relevant part, as:
Whoever, being of the age of 18 years and upwards, by any
course of conduct in violation of Chapter 31 (relating to sexual
offenses) corrupts or tends to corrupt the morals of any minor
less than 18 years of age, or who aids, abets, entices or
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encourages any such minor in the commission of an offense
under Chapter 31 commits a felony of the third degree.
18 Pa.C.S. § 6301(a)(1)(ii).
“A person commits involuntary deviate sexual intercourse with a child,
a felony of the first degree, when the person engages in deviate sexual
intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.
§ 3123(b).
“In addition to proving the statutory elements of the crimes charged
beyond a reasonable doubt, the Commonwealth must also establish the
identity of the defendant as the perpetrator of the crimes.”
Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa. Super. 2010). “Evidence
of identification need not be positive and certain to sustain a conviction.”
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)
(citation omitted).
Our Supreme Court has stated that “any indefiniteness and uncertainty
in the identification testimony goes to its weight. Direct evidence of identity
is, of course, not necessary and a defendant may be convicted solely on
circumstantial evidence.” Commonwealth v. Hickman, 309 A.2d 564, 566
(Pa. 1973) (citations omitted).
Where a victim testifies via closed-circuit television and, thus, does not
directly identify the defendant in court, the Commonwealth may establish
the defendant as the perpetrator based on alternative circumstantial
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evidence, e.g., the victim’s testimony coupled with other contextual
evidence or witness identifications. Brooks, 7 A.3d at 857.
Our review of the record supports the trial court’s conclusion that
there is no merit to Appellant’s sufficiency claim. Because the victim
testified via closed-circuit television, in-court identification of Appellant was
impossible. Nevertheless, as the trial court aptly observed, the victim’s
testimony repeatedly identifying the perpetrator as “Jay” was sufficient to
establish that Appellant was the perpetrator of the sexual abuse when
coupled with: (1) the in-court identifications by the victim’s mother and the
victim’s brother; (2) the fact that, after the victim disclosed to his brother
the abuse by “Jay” while Appellant was inside the home, the victim’s brother
then confronted Appellant; (3) other circumstantial evidence that made clear
Appellant was the person the victim referred to as “Jay,” who frequently
stayed overnight in the victim’s home; and (4) two defense witnesses who
referred to Appellant as “Jay” during their testimony. See Trial Court
Opinion at 31-39. Accordingly, we affirm on the basis of the trial court’s
Opinion.
The parties are instructed to attach a copy of the trial court’s June 26,
2017 Opinion to all future filings.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/18
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Circulated 07/18/2018 10:33 AM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA : NO. 3932451
v.
JAMES ALBERT STRAFFORD Superior Court No. 3827 OA 2016
-
A. Sheldon Kovach, Esquire Deputy District Attorney for the Commonwealth
-
Steven M. Papi, Esquire Attorney for James Albert Strafford
OPINION
Kelly, J. Date: June 26, 2017
I. Case History
A criminal complaint was filed on December 10, 2014, by Trooper Jonathan Pipes,
Pennsylvania State Police, charging James Strafford (hereinafter referred to as "Defendant" or
"Strafford") with, inter alia, indecent assault2 and corruption of minors.3
On March 18, 2015, the Commonwealth simultaneously lodged its Petition to Admit Out -
of-Court Statements Under the "Tender Years Hearsay Exception", 42 Pa.C.S. § 5985.1 [sic],4 as
well as a Motion to Allow a Child Witness to Testify Under the Pennsylvania Uniform Child
Witness Testimony by Alternative Methods Act", 42 PA.C.S. §5985 [sic].5 See Petition to -
Admit Out -of-Court Statements Under the "Tender Years Hearsay Exception" and Motion to
Allow a Child Witness to Testify Under the Pennsylvania Uniform Child Witness Testimony by
Alternative Methods Act.6
An evidentiary hearing as then scheduled took place on March 24, 2015, relevant to these
two (2) prosecution pleadings.? N.T. 3/24/15. See also Hearing Notice dated March 20, 2015.
By an order dated April 13, 2015, this court granted and denied in part the
Commbnwealth's petition permitting the prosecution to introduce into evidence only some of the
minor complainant's proffered out-of-court statements, assuming it called him to testify at any
such listing. See Order dated April 13, 2015.
The court per a separate order of the same date (April 13, 2015) granted the prosecution's
motion and allowed the minor complainant to testify for purposes of his witness appearances in
the proceedings at bar, including but not limited to the preliminary hearing, through the
contemporaneous alternative method of close circuit television. See Order dated April 13, 2015.
A preliminary hearing was held before the magisterial district court on June 26, 2015, and
after the Commonwealth's presentation of evidence, the Defendant was held for trial court
proceedings as to all charged offenses, as well as an amended involuntary deviate sexual
intercourse8 allegation. See Criminal Complaint and Probable Cause Affidavit, and AOPC Case
Docket.
Defendant Strafford on July 29, 2015, was formally arraigned before the trial court at
which time the Office of the Delaware County District Attorney lodged against him a criminal
information averring, inter alia, the following: Count 1 - Indecent Assault (Person less than
thirteen (13) years of age);9 Count 11 - Corruption of Minors '(Course of Sexual Offenclirig);1°
and Count 33 - Involuntary Deviate Sexual Assault (Person less than sixteen (16) years of age).11
Resulting from such a written stipulation of the attorneys dated January 12, 2016, this
court via an order of January 28, 2016, directed the Delaware County Children and Youth
Services to deliver to it a copy of that child welfare agency's entire file regarding the minor
2
complainant for the court to conduct such an agreed in camera review. -See Order dated January
28, 2016. See also Stipulation dated January 12, 2016.
Following the stipulated in camera review, the court through an order dated February 8,
2016, released to defense counsel and the Commonwealth's attorney copies of the Delaware
County Children and Youth Services documents it had most modestly redacted.'2 See Order
dated February 8, 2016. See also Stipulation dated January 12, 2016, and Order dated January
28, 2016.
On July 28, 2016, the Defendant lodged a counseled, Pretrial Motion in Limine [Sic][. See
Pretrial Motion in Limine [sic]. This filing advanced the following: Count 1 - Motion to Quash
Certain Counts; Count 2 - Mdtion to Peindi an Observer in the Video Room While the Accuser
Testifies; Count 3 - Motion for Supplemental Questions in General Voir Dire [sic]; and Count 4
Motion to Preclude References to the Accuser as "Victim" (Subcounts I, II, and III). See Pretrial
Motion in Limine [sic].
On July 29, 2016, the prosecution orally advanced, of-record, in a robing room
conference, an application to amend the criminal information. The Commonwealth via this
request sought to amend the charges at bar to note respective offense dates of June 1, 2013,
through December 7, 2014, as well as to reflect the involuntary deviate sexual intercourse
allegation was that of a child.13 This amendment application, without objection, was granted and
additionally memorialized by this court per an order of that same day (July 29, 2016). See also
Order dated July 29, 2016. See generally Pa.R.Crim.P. 564.
At this same robing room conference (July 29, 2016), the court reviewed with the
attorneys the defense's most recently lodged in limine motion. N.T. 7/29/16, pp. 5-19. See
Pretrial Motion in Limine [sic]. Stemming from the prosecution's permitted amendment to its
3
criminal information, defense counsel acknowledged that count 1 of his motion (Motion to
Quash Certain Counts) was rendered moot. Relevant to count 2 of this in limine pleading
(Motion to Permit Observer), the attorneys had reached an agreement that the live video
conferencing trial testimony of the minor complainant, S.C.,'4 include at all times both the
physical appearances of this juvenile and the victim services representative then present so as to
allow the jury the opportunity to observe visually and aurally those verbal and/or nonverbal
interactions between the minor complainant and the victim advocate, if any. Following a
discussion concerning the court's voir dire, the Defendant's lawyer determined the third count of
his motion (Motion for Supplemental Questions) was moot and withdrew the same. Regarding
Count 4 - Motion to Preclude References to the Accuser as "Victim," subcounts I (References to
the Accuser at the "Victim" Violate the Presumption that James Strafford is Innocent) and II (At
Trial, References to the Accuser as the .``Victim" by the Court or Prosecutors would Improperly
Express a Personal Belief that the Accuser is Telling the Truth, or that a Crime was committed,
or that Mr. Strafford is Guilty) were denied, while subcount III (During Trial the Court, the
Parties, and All Witnesses Should Refer to Individuals by Their Names) was withdrawn by
Defendant Strafford's attorney. N.T. 7/29/16, pp. 5-19. The court subsequent to this of-record
robing room conference entered an order further memorizing these dispositions of the defense's
in limine applications. See Order dated July 29, 2016.
A jiuy trial commenced on August 1, 2016, and continued over the next two (2) days,
concluding on August 3, 2016. N.T. 8/1/16. N.T. 8/2/16. N.T. 8/3/16. The jury by its verdict
found Defendant Strafford guilty of the following: Count 1 - Indecent Assault;15 Count 11 -
Corruption of Minors (Course of Sexual Offending);'6 and Count 33 - Involuntary Deviate
Sexual Intercourse with a Child.'7 N.T. 8/3/16, pp. 119-23. The Commonwealth just after the
4
jury's verdict advanced in open court, an oral, bail revocation application. This court increased
the Defendant's bail and the same was additionally memorialized through an order of that same
date (August 3, 2016). N.T. 8/3/16, pp. 123-26, 130-31. See also Order dated August 3, 2016.
As such aids, the court ordered a presentence investigation and a psychosexual evaluation. N.T.
8/3/16, p. 129. See also Presentence Investigation Report Request. See generally Pa.R.Crim.P.
702.
On this date (August 3, 2016), Defendant Strafford with the advice and consent of
counsel also waived the statutory requirements" that the necessary sexually violent predator
assessment and determination take place before sentencing. See 42 Pa.C.S. §§9799.12 and
9799.24(a). The Defendant in consultation with his lawyer additionally executed such a waiver
form. See Waiver of Requirements Under 42-Pa.C.S. §9799.24 . N.T. 8/3/16, pp. 127-29.
Sentencing in the above -captioned matter was scheduled for October 20, 2016. N.T. 8/3/16, p.
130.
On August 8, 2016, the court entered an order directing Defendant Strafford to undergo at
the direction of the Pennsylvania Sexual Offenders Assessment Board a sexual violent predator
evaluation. See Order dated August 8, 2016. See also 42 Pa.C.S. §§9799.12; 9799.14(d); and
9799.24(a).
A sentencing hearing took place on October 20, 2016, during which the court sentenced
the Defendant as follows: Count 33 (Involuntary Deviate Sexual Assault with a Child)19 - A term
of seventy-two (72) through one hundred forty-four (144) months incarceration at a state
correctional institution; Count 1 (Indecent Assault (Person less than thirteen (13) years of age))2°
- A five (5) year period of state probationary oversight to run consecutive to count 33
(involuntary deviate sexual intercourse);21 and Count 11 (Corruption of Minors - Course of
5
Sexual Offending)22 -A term of five (5) years state probationary oversight to be served
consecutive to the imprisonment of the involuntary deviate sexual intercourse count (33) and
concurrent to the same period of probation per count 11 (indecent assault).23 The Defendant was
afforded the applicable time served credit and without objection, deemed ineligible for risk
reduction recidivism incentive consideration.24 N.T. 10/20/16, pp. 42-45. See also Certificate of
Imposition of Judgment of Sentence. The court as well reviewed with Defendant Strafford his
understanding and counseled execution of the Offender's Notification of Sentencing Form listing
him as a Tier III registrant, subject to lifetime registration. N.T 10/20/16, pp. '48-49. See also
Defendant's Sexually Violent Offenders Notification at Sentencing: 42 Pa.C.S. 9791. Et Seq.
Form, and 42 Pa.C.S. §§9799.12 and 9799.14(d)).
The Sexual Offenders Assessment Board issued its report on October 28, 2016, finding
Defendant Strafford did, not meet the statutory criteria to be classified a sexually violent predator.
See Sexual Offenders Assessment Board Sexually Violent Predator Assessment. See also 42
Pa.C.S. §9799.24(b)(d). The prosecution thus did not file such a hearing praecipe. See 42
Pa.C.S. §9799.24(e).
No timely or post-sentence motions otherwise were lodged before this court.
On November 18, 2016, the Defendant filed a counseled Notice of Appeal from this
court's sentencing judgment. See Notice of Appeal dated November 18, 2016. See also Superior
Court No. 3827 EDA 2016.
The court entered an 'order on November 21, 2016, instructing Defendant Strafford's
attorney to lodge a concise statement of matters complained of on appeal not later than
twenty-one (21) days subsequent. See Order dated November 21, 2016, See also Pa.R.A.P.
1925(b).
6
F
The Defendant on December 5, 2016, filed a Petition for Extension of Time to File
Statement of Matters Complained of on Appeal. See Petition for Extension of Time, By an
order of that same date (December 5, 2016), this court granted the extension application
providing.Defendant Strafford's lawyer until January 3, 2017, to lodge his appellate complaints
statement. See Order dated December 5, 2016.
On December 30, 2017, the Defendant's counsel filed a statement of matters complained
advancing the four (4) error assignments discussed below. See Statement of Matters
Complained.
H. Discussion
The court erred in permitting the minor complainant to testi_fv by contemporaneous alternative
means (closed circuit video) since it was not established that testifying either in an open forum in
the presence and fill view of the finder offact or in the defendant's presence would result in him
sufferingfrom serious emotional distress such that it would substantially impair his ability to
reasonably communicate.
Defendant Strafford via his first complaint on appeal maintains this court erred when
allowing the minor complainant to testify through the use of an alternative means claiming the
prosecution failed to " establish that testifying either in an open forum in the presence and full
view of the finder of fact or in the defendant's presence would result in him suffering from
serious emotional distress such that it would 'substantially impair his ability to reasonably
communicate." See Statement of Matters Complained, No. 1. A review of the salient case
record in combination with the relevant law reveals this assignment of error to be meritless.
The testimony by contemporaneous alternative method child witness statute is in material
part as follows:
(a) Contemporaneous alternative method. --Subject to subsection
(a.1), in any prosecution involving a child victim ... , the court
may order that the testimony of the child victim ... be taken under
bath or affirmation in a room other than the courtroom and
7
transmitted by a contemporaneous alternative method. Only the
attorneys for the defendant and for the Commonwealth, the court
reporter, the judge, persons necessary to operate the equipment and
any person whose presence would contribute to the welfare and
well-being of the child victim ... , including persons designated
under section 5983 (relating to rights and services), may be present
in the room with the child during his testimony. The court shall
permit the defendant to observe and hear the testimony of the child
victim ... but shall ensure that the child cannot hear or see the
defendant. The court shall make certain that the defendant and
defense counsel have adequate opportunity to communicate for the
purposes of providing an effective defense.[25] Examination and
cross-examination of the child victim ... shall proceed in the same
manner as normally permitted.
(a.1) Determination. --Before the court orders the child victim ...
to testify by a contemporaneous alternative method, the court must
determine, based on evidence presented to it, that testifying either
in an open forum in the presence and full view of the finder of fact
or in the defendant's presence will result in the child victim ...
suffering serious emotional distress that would substantially impair
the child victim's ... ability to reasonably communicate. In making
this determination, the court may do all of the following:
(2) Hear testimony of a parent or custodian ...
(a.2) Counsel and confrontation. --
(2) If the court hears testimony under subsection
(a.1)(2), the defendant, the attorney for the
defendant and the attorney for the Commonwealth
have the right to be present.
See 42 Pa.C.S. §5985(a)(a.1)(2)(a.2)(2).
"Based on these provisions, and in the absence of definitive statutory guidance to the
contrary, [the Pennsylvania Supreme Court] conclude[d] that, in a Section 5985 hearing, as in
other types of proceedings, the legislature intended that evidence is admissible at the discretion
of the trial court." Commonwealth v. Williams, 624 Pa. 183, 196, 84 A.3d 680, 688 (2014).
The applicable review standard of a trial court's discretionary evidentiary ruling
challenged on appeal is that below:
8
The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. ...
Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.Super. 2009)
(quoting Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 550
(2002)). 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, or partiality, as shown by the
evidence of record.' Id. at 1188-89 (citing Commonwealth v.
Carroll, 936 A.2d 1148, 1152-53 (Pa.Super. 2007)).
Commonwealth v. Antidormi, 84 A.3d 736, 749-50 (Pa.Super. 2014).
"[A]s used in subsection 5985 (a. 1), 'serious emotional distress that would substantially
impair the child victim's ability to reasonably communicate' refers to a state or characteristic
that can be recognized and attested to by the child's parent or custodian . The plain purpose
of subsection 5985(a.1) is to set forth the court's obligation to inform itself regarding the
necessity to avoid serious emotional distress to the witness so that the witness is able to
reasonably communicate." Commonwealth v. Williams supra 624 Pa. at 196, 84 A.3d at 688.
In Commonwealth v. Torres-Kuilan, the trial judge opted to delay until the time of trial
ruling on the Commonwealth's motion seeking to permit the child complainant to testify via
closed-circuit television. The juvenile at the start of the trial was called to testify, but " began
crying and refused to enter the courtroom." Commonwealth v. Torres-Kuilan, 156 A.3d 1229,
1230 (Pa.Super. 2017). An in camera hearing then took place where the court heard testimony
from the minor and a "witness coordinator," who detailed " ... how the child broke down
emotionally and refused to enter the courtroom." Id 156 A.3d at 1232. The court resultantly
granted the prosecution's motion for the child complainant to testify by an alternative means. Id.
156 A.3d at 1233. The Superior Court found that the trial court did not abuse its discretion in
9
permitting the juvenile complainant to testify by an alternative means based on its observations
and the testimony from the "witness coordinator." Id. 156 A.3d at 1232-33.
On March 24, 2015, an evidentiary proceeding took place before this court regarding the
Commonwealth's pre-trial pleadings. N.T. 3/24/15. See also Petition to Admit Out -of-Court
Statements Under the "Tender Years Hearsay Exception" and Motion to Allow a Child Witness
to Testify Under the Pennsylvania Uniform Child Witness Testimony by Alternative Methods
Act. At this hearing, the prosecutor presented as a witness relevant to its alternative testimonial
appearance application the minor's mother, H.C.,26 who described various and changed aspects
of his behavior in the time period following the sexual abuse's reporting through this listing date
(March 24, 2015). N.T. 3/24/15, pp. 54-72.
H.C. initially offered that subsequent to the disclosure of the sexual molestation the
minor complainant began to urinate in his bed during the nighttime, frequently have nightmares,
as well as climb into bed with his parents, all occurrences that pre -sexual abuse for the victim
were unusual. N.T. 3/24/15, pp. 55-56.
In addition to these ongoing behavioral issues, H.C. recounted a specific instance where
on their leaving the Pennsylvania State Police Media barracks the minor complainant believed he
saw the Defendant's motor vehicle prompting him to become "very agitated" and have "a
complete freak out." N.T. 3/24/15, pp. 56-57. H.C. advised her son (S.C.) thinks of Defendant
Strafford as a "bad guy." N.T. 3/24/15, p. 56.
Responding to the prosecution's inquiry as to the complainant's demeanor when he is
informed of his needed testimonial attendance at court, his mother (H.C.) explained that S.C.
becomes uncomfortable and his behavior "moody." N.T. 3/24/15, p. 58.
10
Similarly, on the Commonwealth questioning H.C. about the minor complainant's
response, if any, were he to have contact with the Defendant in a testimonial setting, she detailed
that prior to the March 2015 hearing she informed her son that Defendant Strafford may be
present at the scheduling which prompted S.C. to tell her that he did not want to see the
Defendant and that "he would run out of the room." N.T. 3/24/15, pp. 69-70. The complainant's
mother relatedly offered that if the minor saw Defendant Strafford he would hide his face, as
well as most probably try to conceal himself under a table, common reactionary behaviors he
exhibits when he gets upset, scarred, and/or embarrassed. N.T. 3/24/15, pp. 70-71.
Beyond her son's (S.C.) post -sexual abuse behavioral issues and his particular, adverse
reactions to encountering Defendant Strafford both in and outside a courtroom, H.C. also
described S.C.'s struggles in school which included the following: No longer doing his assigned
work; Leaving his desk and walking away from the teacher; and Requiring a classroom "helper"
to keep him focused on his schoolwork. N.T. 3/24/15, p. 58. S.C.'s mother added that before the
disclosure he attempted his schoolwork, "his effort was there," but his academic situation
following the sexual molestation's reporting had materially And for the worse changed. N.T.
3/24/15, p. 60. Sometime prior to the hearing (March 24, 2015) the minor complainant's school
contacted H.C. notifying her that " had to attend [an] extended school year because of his
regression with his efforts." N.T. 3/24/15, p. 62.
This court throughout the entirety of her pre-trial hearing 'witness appearance (March 24,
2015) was most observant and attentive to that which the complainant's mother (H.C.) proffered
salient to whether her son (S.C.) testifying at bar " in an open forum ... in the presence of the
Defendant [would] result in the child victim ... suffering serious emotional distress that would
11
substantially impair . [his] ,-, . ability to reasonably communicate," 42 Pa.C.S. §5985(a.1).
This court found such testimony of H.C. to be credible.
The complainant's mother (H.C.) described significant, continual and negative pattern,
behavioral changes in her son both at home and school subsequent to the sexual abuse's
disclosure. The post -sexual molestation onset of nighttime bed wetting, his regularly suffering
from nightmares and the need to now join his parents during the night in their bed were
collectively all certainly indicative that the minor complaint was subject to recurring, serious
emotional trauma. The school based issues manifested after the sexual abuse's reporting
included the ignoring of the authority figure teacher and an inability to focus on assigned tasks
which taken together seriously called into question the complainant being able to appear in the
strange environs of a courtroom, follow the presiding judge's directions and be sufficiently
attentive to the lawyers' many questions so as to provide meaningful testimony, Moreover, these
negative behavioral changes of S.C. not only began after the sexual abuse's disclosure, but were
ongoing through the case's pendency, including the pre-trial proceeding (March 24, 2015) and
adversely impacted per that which his mother (H.C.) detailed the two (2) primary facets of an
eight (8) year old's life, family and school. N.T. 3/24/15, pp. 54-72.
In addition to these continuing patterns of negative, post -sexual abuse disclosure
behaviors, the minor complainant's mother (H.C) also testified about specific instances of S.C.'s
deleterious responses to even the suggestion of appearing in court to testify and/or otherwise
having contact with Defendant Strafford, Believing he saw the Defendant in a passing
automobile after having just left a meeting with the investigating state trooper, the complaint
became "very agitated" and had a "complete freakout," reactionary behaviors certainly not
conducive to an eight (8) year old reasonably communicating in a courtroom's very foreign
12
setting. N.T. 3/24/15, pp. 56-57. Likewise, when told he may encounter Defendant Strafford on
coming to court, S.C. pointedly told his mother (H.C.) that "he would run out of the room." N.T.
3/24/15, pp. 69-70. See Commonwealth v. Torres-Kuilan supra 156 A.3d at 1230-33. As H.C.
further amplified, the minor complainant on being subject to appreciable stress prompting fright
and/or embarrassment responds by trying to hide his face or physically conceal himself
otherwise. N.T. 3/24/15, pp. 70-71. Again, not behaviors favorable to a child of age eight (8)
coming into the alien scene of a courtroom, sitting on the witness stand just some approximate
three (3) or so feet from the jury box, in the presence of his alleged sexual abuser, then being the
obvious focal point of the jurors fourteen (14) strangers, the court, two (2) attorneys, as well as
the Defendant, and yet being able to reasonably communicate.
It was from this totality of credible, material circumstances that the court concluded the
minor complainant testifying at bar " in an open forum in the presence of the defendant
[would] result in [S.C.] ... suffering serious emotional distress that would substantially impair .. ,
[his] ... ability to reasonably communicate." 42 Pa.C.S. §5985(a.1).27
This court's decision allowing the minor complainant's testimonial appearances via an
alternative means cannot be seen on the instant record as an "overriding or misapplication of the
law, or the exercise of judgment that [was] manifestly unreasonable, or the result of bias,
prejudice, ill -will or partiality." Commonwealth v. Antidormi supra 84 A.3d at 749-50 quoting
Commonwealth v. Weakley supra 972 A.2d at 1188-89 citing Commonwealth v. Carroll supra
936 A.2d at 1152-53. Rather, this court's findings and related conclusions as recounted above
resulted from an impartial, considered process grounded on the credible and uncontradicted
testimony of the minor's mother (H.C.) about her son's (S.C.) in person testimonial appearance
causing him to suffer serious emotional distress materially and negatively impacting his ability
13
as such a witness to reasonably communicate. See Commonwealth v. Williams supra 624 Pa. .at
196, 84 A.3d at 688 and Commonwealth v. Torres-Kuilan supra 156 A.3d at 1232-33. This court
did not commit an abuse of its discretion in permitting S.C. to testify by alternative means, and
the Defendant's error assignment otherwise is without merit.
The court erred in admittin all o the out o court statements that the complainant alle edl
supplied to his brother (KC.) and mother (H.C.), as well as to Jodi Kaplan (including related
audio recording and contemporaneous writings) since the time, content, and circumstances of
those statements did not demonstrate sufficient indicia of reliability as required for the tender
years exception.
Defendant Strafford through his second error assignment attacks this court's admission of
the oral averments made by the minor complainant to his adolescent brother, K.C., mother, H. C.,
as well as the recorded statements and relevant documents generated when S.C. met with Jodi
Kaplan, the Child Advocacy Center forensic interviewer. In support of this appellate complaint,
the Defendant summarily and baldly contends " the time, content, and circumstances of those
statements did not demonstrate sufficient indicia of reliability as required for the tender years
exception." See Statement of Matters Complained, No. 2.28 This court on a review of the salient
case record did not abuse its discretion in partially granting the Commonwealth's tender years
hearsay petition and allowing the prosecution's introduction at bar of such evidence now
challenged on appeal. This error assignment is meritless.
The statutory language controlling the admission of a child witness's hearsay statements
is as relevant set forth below:
(a) General rule. --An out-of-court statement made by a child
victim or witness, who at the time the statement was made was 12
years of age or younger, describing any of the offenses enumerated
in 18 Pa.C.S. Chs. ... 31 (relating to sexual offenses), not
otherwise admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:
14
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient
indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; .... .
42 Pa.C.S. §5985.1(a)(1)(2)(i).
"The 'admissibility of this type of hearsay is determined by assessing the particularized
guarantees of trustworthiness surrounding the circumstances under which the statements were
uttered to the person who is testifying.' " Commonwealth v. Walter, 625 Pa. 522, 538, 93 A.3d
443, 451 (2014) quoting Commonwealth v. Delbridge, 578 Pa. 641, 672-73, 855 A.2d 27, 45
(2003). "To determine whether a child's out-of-court statements are admissible under the
TYHA, 'a trial court must assess the relevancy of the statements and their reliability in
accordance with the test enunciated in Idaho v. Wright{, 497 U.S. 805, 110 S. Ct. 3139 (1990)].
Although the test is not exclusive, the most obvious factors to be considered include the
spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of
terms unexpected in children of that age and the lack of a 'motive to fabricate." Id 625 Pa. at
538, 93 A.3d at 451 quoting Commonwealth v. Delbridge supra 578 Pa. at 675, 855 A.2d at 45.
See also Commonwealth v. Barnett, 50 A.3d 176, 182-83 (Pa.Super. 2012) quoting
Commonwealth v. Kriner, 915 A.2d 653, 657 Fn. 3 (Pa.Super. 2007).
A trial court's challenged decision to allow tender years hearsay evidence for purposes of
appellate review is examined under the abuse of direction standard. Commonwealth v. Curley,
910 A.2d 692, 697 (Pa.Super. 2006) citing Commonwealth v. Lukowich, 875 A.2d 1169, 1172
(Pa.Super. 2005)("We will not reverse the trial court's decision to admit evidence pursuant to the
tender years statute absent an abuse of discretion."). "An abuse of discretion is not merely an
15
error of judgment, but 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 evidence of record.' " Commonwealth v. Antidormi supra 84 A.3d at 749-50 quoting
Commonwealth v. Weakley supra 972 A.2d at 1188 citing Commonwealth v. Carroll supra 936
A.2d at 1152-53.
At the joint hearing regarding the Commonwealth's pre-trial pleadings (March 24, 2015),
the assistant district attorney related of-record that regardless of its petition's averments, the
prosecution was seeking to have the court determine the admissibility of only the minor
complainant's following out-of-court statements: Oral statement to the complainant's older
brother, K.C., made on or about December 6, 2014; Oral statement to the complainant's mother,
H.C., also made on or about December 6, 2014; Audio recorded statement of December 8, 2014,
to forensic interviewer, Jodi Kaplan, along with certain writings generated during this recorded
interview,29 including but not limited to anatomically correct diagrarn(s);3° and/or Audio
recorded statement of December 16, 2014, to Pennsylvania State Trooper Jonathan Pipes.31 N.T.
3/24/15, pp. 126-27.
In support of its petition, the prosecution at the resulting hearing (March 24, 2015)
presented the testimony of the minor complainant's older brother, K.C., his mother, H.C., the
forensic interviewer, Ms. Kaplan, and Trooper Pipes. N.T. 3/24/15, pp. 7-22, 22-54, 73-92, 93-
108.
The court by its order dated April 13, 2015, found that the minor complainant's
statements to his mother (H.C.) and brother (K.C.) were to be permitted, as well as the audio
recorded statements to the forensic interviewer, Jodi Kaplan. The court via this same order
(April 13, 2015) also directed the recorded statement to Trooper Pipes was not to be admitted.
16
See Order dated April 13, 2015. See also Commonwealth Exhibit CM -1 - Jodi Kaplan's
Forensic Interview Report; CM-2 - Audio Recording of December 8, 2014, Forensic Interview;
and CM -3 - Audio Recording of Trooper Pipes' December 16, 2014, Interview.
At the relevant hearing (March 24, 2015), the minor victim's older brother, K.C., age
eleven (11), recounted the minor complainant's initial revealing to him of the Defendant's sexual
abusive behavior. N.T. 3/24/15, pp. 7, 10.
On or about December 6, 2014,32 the two (2) brothers were in their parents' bedroom
playing and K.C. noticed that S.C. seemed to be hinting about something while mentioning the
Defendant noticeably more than usual. N.T. 3/24/15, pp. 9, 10. During their horseplay, K.C.'s
pants slipped lower revealing his "behind." N.T. 3/24/15, p. 15. Although yet somewhat
hesitant, S.C. then blurted out that "Jay had touched his privates." N.T. 3/24/15, pp. 11-12, 16.
K.C. recounted that initially S.C. attempted to brush this disclosure off as joke, but K.C.
told him " this is serious. You need to tell me the truth." N.T. 3/24/15, pp. 11-12. In
response, the minor complainant began to apologize and advised that he was being serious. N.T.
3/24/15, p. 13. S.C. then related the sexual molestation was "going on before summer and all
through summer" and included that "Jay has been ... touching my penis," as well as that "Jay"
was "touching his butt." N.T. 3/24/15, pp. 13-14. The complainant further told his older brother
(K.C.) these acts of sexual abuse occurred in the family home's "piano" room and in the
basement. N.T. 3/24/15, p. 14.
The minor complainant's mother, H.C., as well appeared at this hearing (March 24, 2015)
material to the statements he made to her on December 6, 2014. N.T. 3/24/15, p. 24.
H.C. stated that on a Sunday night in December 2014, K.C. approached her advising that
S.C. needed to speak with her about a matter of significant importance. N.T. 3/24/15, p. 25.
17
Initially, the minor complainant "hesitated and kind of bit his lip and ldnd of shuffled his feet
kind of like he didn't want to tell me something." N.T. 3/24/15, pp. 2627.
With K.C:'s noting that he would not get in trouble, "[S.C.] went 'ahead and told [his
mother, H.C.,] that Jay touched his penis." N.T. 3/24/15, p. 27.. The minor complainant as well
stated to her (H.C.) that "he put his hand down my pants." N.T. 3/24/15, p. 28. S.C. further
disclosed to his mother (H.C.) that such " ... had been happening since the summertime and that
it happened more than once. And it happened as recently as that weekend." N.T. 3/24/15, p. 29.
His mother (H.C.) also detailed the minor complainant told her that "Jay" touched his bottom,
which he referred to as "butt cheek." N.T. 3/24/15, p. 33. H.C. as well asked where else "Jay"
touched the minor complaint to which S.C. replied that the Defendant touched him with his
mouth prompting the following exchange: "I said what part did his mouth touch and he said
penis." N.T. 3/24/15, p. 34. When making these final disclosures, the mother (H.C.) testified
S.C. was more hesitant and embarrassed. N.T. 3/24/15, p. 34.
After these allegations of sexual abuse were promptly was reported to the Pennsylvania
State Police by H.C. that same evening, an interview of S.0 was conducted by the Child
Advocacy Center's forensic interviewer, Jodi Kaplan on December 8, 2014. N.T. 3/24/15, pp.
74-75, 77-78. See Commonwealth Exhibit CM -2 - Audio Recording of December 8, 2014,
Forensic Interview and Commonwealth Exhibit C-3(B) - Anatomical Diagram(s). Ms. Kaplan is
the Program Director for the Delaware County Children's Advocacy Center. N.T. 3/24115, p. 74.
Ms. Kaplan regarding child forensic interviews had past been educated through two (2)
nationally recognized training models. The methodology Ms. Kaplan practices is the National
Children's Advocacy Center model that provides " ... a coordinated response to allegations of
childhood sexual abuse." N.T. 3/24/15, pp. 74-75. The participants are initially trained through
18
forty (40) hours of instruction, N.T. 3/24/15, p. 75, Beyond this original schooling, the center's
staff, including Ms. Kaplan, is then required to annually undergo twenty (20) continuing
education hours. N.T. 3/24/15, p. 75. In addition to these yearly classes, as such a forensic
interviewer, Ms, Kaplan also " .. participate[s] in a peer review process four times a year as
,
well as keep[s] up with research through journal club calls." N.T. 3/24/15, p. 75. Ms. Kaplan
described that her goal in meeting with S.C. was to. " provide a child focused,
developmentally appropriate, non -leading investigative forensic interview of the child." N.T.
3/24/15, p. 75.
Ms. Kaplan explained that at the start of the discussion she " started off with narrative
practice and [S.C.] was providing appropriate responses to his school activities and kind of social
activities." N.T. 3/24/15, p. 80. As the interview progressed "[S.C.] spontaneously began
talking about who he identified as Jay ... and he expressed being a little apprehensive about
talking about the allegations." N.T. 3/24/15, p. 80. Ms. Kaplan clarified the identification of
"Jay" stemmed from her discussions with S.C, about his "household constellation" which
included " ... people staying in the home and one of the people he described as being in the
home was Jay." N.T. 3/24/15, p. 85. After Ms. Kaplan provided S.C. with reassurance that he
was in " a safe place to talk and that he could end the interview at anytime he felt that he
Wanted to ... he continued on with the interview ... ," N.T. 3/24/15, pp. 80-81. Ms. Kaplan
during their discussions provided S.C. with " an anatomical diagram to talk about some of the
abuse specific allegations ... ." N.T. 3/24/15, p. 81. See also Commonwealth Exhibit C -3(B) -
Anatomical Diagram(s). Ms. Kaplan recalled that "[w]hen [S.C.] started talking about the abuse
specific allegations he became a little more quiet." N,T. 3/24/15, p. 81. Eventually, S.C. did
reach a point where he wanted to discontinue talking and the interview ceased, despite his
19
vocalizing " .. there were some things that he did not feel comfortable talking about." N.T.
3/24/15, p. 82.
The audio recording of Ms. Kaplan's forensic interview with the minor complainant
included particularized disclosures about the complainant being sexually abused by Defendant
Strafford. See Commonwealth Exhibit CM-2 - Audio Recording of December 8, 2014, Forensic
Interview. During this conversation (December 8, 2014), S.C. detailed that two (2) days earlier
in the "piano" room the Stafford had assaulted him by placing his hand on S.C.'s thigh as well as
touched the minor complainant's penis, prompting him to disclose the sexual abuse to his
brother, K.C. As S.C. recounted to Ms. Kaplan, subsequent to him advising K.C. about the
sexual molestation, his older brother (K.C,) urged the complainant to first tell the same to their
mother. S.C. then revealed to Ms. Kaplan that Defendant Strafford touched his penis with his
hands on more than one (1) occasion and the Defendant was lying about not committing such
acts. The minor complainant recalled several times.throughout the interview that the sexual
molestation commenced before the summer when he was about six (6) or seven (7) years of age
and occurred in the basement of the family home, as well as in the residence's "piano" room.
One (1) of the incidents involved the Defendant in the basement pretending to sleep while S.C.
was lying down next to him. Per this statement of S.C. to Ms. Kaplan, Defendant Strafford then
proceeded to touch and grab both the minor's penis and "butt cheek." See Commonwealth
Exhibit CM-2 - Audio Recording of December 8, 2014, Forensic Interview.
The minor complainant as part of this this forensic interview (December 8, 2014), using
an anatomical drawing of a prepubescent male circled on this diagram the area where he was
touched by the Defendant, which he then verbally described that he had so noted the penis and
buttocks. See Commonwealth Exhibit C -3(B) - Anatomical Diagram(s). While S.C. advised he
20
never touched Defendant Strafford's penis, he did observe it and described it as big and hairy.
Similarly, the complainant as well detailed that he observed something emerge from Defendant
Strafford's penis that looked like "spit." See Commonwealth Exhibit CM -2 - Audio Recording
of DeCember 8, 2014, Forensic Interview.
This court by its material order (April 13, 2015) barred the Commonwealth from
admitting S.C.'s audio recorded statement of December 16, 2014, to Trooper Pipes. See Order
dated April 13, 2015, pp. 3-4. Despite the trooper's interview being certainly relevant to the
criminal charges, this court found that the time, content and/or circumstances of the statement
did not provide sufficient indicia of its reliability. 42 Pa.C.S. §5985.1(a)(1). See Order dated
April 13, 2015, pp. 3-4. See generally Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa.Super.
2005) citing Commonwealth v. Hanawalt, 419 Pa.Super. 411, 422, 615 A.2d 472, 438 (1992) and
Commonwealth v. Walter supra 93 A.3d at 451 citing Commonwealth v. Delbridge supra 578
Pa.Super. at 674-75, 855 A.2d at 47.
A trial court's deten iination as to the admissibility of the statements under the tender
years hearsay exception concerns the "relevancy" and "reliability" of the statements pursuant to
the Idaho v. Wright supra test of " ... spontaneity of the statements, consistency in repetition, the
mental state of the declaran.t, use of terms unexpected in children of that age and the lack of a
motive to fabricate." Commonwealth v. Walter supra 93 A.3d at 451 citing Commonwealth v.
Delbridge supra 578 Pa.Super. at 674-75, 855 A.2d at 47. See also 42 Pa.C.S. §5985.1(a)(1).
The original statements detailing his sexual victimization S.C. made to K.C. were
spontaneous as K.C. testified the two (2) were playing in their parents' bedroom when the minor
complainant unexpectedly disclosed to him, "Jay had touched his privates." N.T. 3/24/15, pp.
11-12, 16. Similarly, S.C.'S statements of sexual abuse disclosures to his mother, H.C., by
21
extension consisted of an impulsive nature as they were communicated only moments after this
initial disclosure to K.C. N.T. 3/24/15, pp. 27-29, 33, 34.
While S.C.'s disclosures to Ms. Kaplan were not unsolicited or impromptu like those
revealed to his brother (K.C.) and mother (H.C.), they were made during the course of S.C.'s
forensic interview. Ms. Kaplan conducted the discussion in a neutral manner based on her
salient professional experience and training. N.T. 3/24/15, pp. 74-75. Through her role as the
case's forensic interviewer, Ms. Kaplan conducted a " ... focused, developmentally appropriate,
non-leading investigative forensic interview of the child." N.T. 3/24/15, p. 75. See also
-
CommonwealthExhibit CM -2 Audio Recording of December 8, 2014, Forensic Interview.
In addition to being respectively. unprompted and/or resulting from a nonsuggestive
forensic interview, S.C.'s statements were also repetitive and consistent as disclosed to K.C.,
H.C., and Ms. Kaplan. The victim communicated to these three (3) persons that Defendant
Strafford had touched his penis, as well as buttocks, and even depicted on the prepubescent
anatomical drawing these same areas for Ms. Kaplan. N.T. 3/24/15, pp. 13-14, 27-28. See also
Commonwealth Exhibit C3(B) - Anatomical Diagram(s). The minor complainant not only
explained to K.C., H.C., and Ms. Kaplan the multiple acts of sexual assault had commenced prior
to the summer, but communicated to each K.C. and Ms. Kaplan that the sexual abuse took place
in both the family home's "piano" room, as well as the basement. N.T. 3/24/15, pp. 13-14, 29.
See also Commonwealth Exhibit CM -2 - Audio Recording of December 8, 2014, Forensic
Interview.
Beyond the spontaneous and consistent nature of S.C.'s statements to his brother, K.C.,
his mother, H.C., and Ms. Kaplan, the record at bar is notably devoid of any suggestion that S.C.
had any ,motive to fabricate his continued accounts to these individuals regarding Defendant
22
Strafford's ongoing sexual molestations. N.T. 3/24/15; N.T. 8/1/16; N.T. 8/2/16; and N.T.
8/3/16.
The evidence this court allowed through the partial granting of the prosecution's tender
years petition was as detailed above and in its April 13, 2015, order the result of a discerning,
deliberative process and not a summarily embracing of all that which the Commonwealth sought
to introduce. See Order dated April 13, 2015. See also KT, 3/24/15, pp. 120-21, 126-27.
Simply because this court in the exercise of its discretion did not reject the sum of the
prosecution's child hearsay statements' proffer does not equate to the evidence it did so admit
lacking the requisite, sufficient indicia of reliability. Commonwealth v. Walter supra 625 Pa, at
538, 93 A.3d at 451. See also 42 Pa.C.S. §5985.1(a)(1)(2)(i). This court's decision was not the
result of "the overriding or misapplication of the law, or the exercise of judgment that is
manifestly iitreasonable, or the result of bias, prejudice, ill -will or partiality," and this error
assignment thus is meritless. Commonwealth v. Antidormi supra 84 A.3d at 749-50.
The court erred in permitting the prosecutor and police officer witness to refer to the
complainant as the victim throughout the course of trial. Use of the word "victim" was unduly
re'udicialcomromisedtheact-nclinwlur served to undermine the
presumption of innocence.
Defendant Strafford by his third appellate complaint argues that this court erred in
permitting the Commonwealth and the state police witness, Trooper Pipes, to refer to the minor
complainant, S.C., as "victim" throughout the trial. More specifically, the Defendant maintains
the "[u]se of the word 'victim' was unduly prejudicial, compromised the fact-finding function of
the jury, and served to undermine the presumption of innocence." See Statement of Matters
Complained, No. 3. This error assignment is devoid of merit.
Via defense counsel's pretrial in limine motion, he sought to preclude the attorneys, all
witnesses and the court during the trial from referring to the minor complainant as a "victim."'
23
See Pretrial Motion In Limine [sic] 7- Count 4 - Subcounts 1, II. When these in limine
applications were addressed at the of-record robing room conference (July 29, 2016), the
Defendant's attorney advanced in support of these requested prOhibitions not a single direct or
even tangential Pennsylvania appellate decision and/or other legal authority otherwise, but rather
proffered nothing more than the speculative belief that should S.C. at trial be verbally identified
as a "victim," the jury for unspecified reasons would be unable to properly discharge its
factfmding responsibility and/or not honor the accused's presumption of innocence. N:T.
7/29/16, pp. 15-16. The court after entertaining the respective arguments of the lawyers denied
these defense in limine requests. N.T. 7/29/16, pp. 15-18. See also Order dated July 29, 2016.
It is well -settled that "[a]bsent evidence to the contrary, the jury is presumed to have
followed the trial court's instructions." Commonwealth v. O'Hannon Supra 557 Pa. at 262, 732
A.2d at 1196 citing Commonwealth v. LaCava supra 542 Pa. at 182, 666 A.2d at 231;
Commonwealth v. Brown supra 567 Pa. at 289, 786 A.2d at 971 citing Commonwealth v. Travers
supra citing Commonwealth v. Travaglia supra; Commonwealth v. Spotz supra 587 Pa. at 57,
896 A.2d at 1224 quoting Comminwealth v. Brown supra 567 Pa. at 289, 786 A.2d at 871 and
Commonwealth v. O'Hannon supra 557 Pa. at 262, 732 A.2d at 1196. The trial record does not
contain even a modicum of evidence that the jury disregarded this court's repeated direction
literally starting with the jurors' selection that Defendant Strafford was presumed innocent unless
or until the prosecution proved beyond a reasonable doubt his guilt. Likewise, there is just no
evidence on the instant record to suggest the jury did not follow the court's directions about how
it was to fairly and impartially discharge its factfinding function.
The court during jury selection, inter alia, advised the venire panel of the following:
Under the law of Pennsylvania, ladies and gentlemen, every
accused is presumed innocent. The burden is solely on the
24
Commonwealth to prove an accused guilty beyond a reasonable
doubt. As I said, anyone accused of a crime, ladies and gentlemen,
is presumed innocent, and that presumption of innocence remains
unless or until the Commonwealth convinces the jury unanimously
beyond a reasonable doubt that one is guilty of some or all of the
crimes charged. The mere fact an individual has been arrested and
charged by the police with a crime or crimes is not evidence of
guilt and cannot be considered by the jury as such. Ladies and
gentlemen, in this and all other criminal jury trials, the jury's core
responsibility is that of the case's ultimate fact finder. The jury
will listen to all witnesses presented and examine every admitted
evidentiary exhibit, free to believe all, some or none of any.
witness's testimony and free as well to disregard in whole or part
any admitted exhibit of evidence. The jury will consider and
weigh the presented testimony as well as the trial's other evidence
and determine the matter's true facts. The jury's key fact-finding
function is exclusive. You the jury will solely determine this
case's credible facts, not I and/or the lawyers. For those of who
[sic] selected to serve as jurors, I'll provide before the
commencement of the trial's evidentiary presentation more
specific guidance as to how one goes about fairly and justly
discharging the jury's fact finding function. Stripped of its
legalistic and eloquent verbiage, ladies and gentlemen, this can be
succinctly summarized for our purposes now as one, careful
attentiveness, and two, coupling that attentiveness with the
exercise of your everyday life experiences, and three, your good
common sense. While you and you alone, ladies and gentlemen, as
the jury will be the exclusive arbiters of the case's credible facts, I
as the presiding judge do obviously have certain responsibilities.
Although the jury is the sole judge of fact, I an the exclusive judge
of the case's law, The jury must accept and follow all my legal
rulings and instructions. No juror may apply any law he or she
knows or thinks he or she knoWs. The only law a juror may
consider and apply in this case is that which I will direct or
instruct.
Ladies arid gentlemen, a phrase I have used and will continue to
use throughout the selection process is that of a 'fair and impartial
juror.' A fair and impartial juror is one who will conduct his or
her own deliberations and base his or her own verdict solely on
the evidence and testimony presented throughout this trial and in
strict accordance with my binding instructions of the law given
by me to the jury throughout the trial and at its conclusion.
Ladies and gentlemen, a fair and impartial juror does not allow
any outside influences be it bias, prejudice, or sympathy to affect
25
his or her deliberations and ultimately his or her eventual
verdict.
Ladies and gentlemen, as I mentioned previously, while you as the
jury will be the case's exclusive arbiters of the facts, I will be the
sole judge of the matters of law, and as such, you must accept and
follow only my legal rulings and instructions on the law. These
principles of law applicable to criminal trials which a jury must
accept and follow are sometimes referred to as binding instructions
in the law. I'll now review with you certain of these binding legal
principles and inquire after each whether anyone would have
difficulty or simply be unable to follow the same? [sic] Ladies
and gentlemen, is there anyone among you who would refuse to
accept this binding instruction of the law, that Mr. Strafford is
presumed innocent of the charges, and it is only the
Commonwealth's burden to prove his guilt of the crimes charged
beyond a reasonable doubt? If you can't follow this binding
principle of law, please stand. No one is standing. Ladies and
gentlemen, is there anyone among you would [sic] who refuse the
[sic] accept the binding instruction of law that the Commonwealth
has the only burden of proof in this case and that Mr. Strafford
being presumed innocent has no obligation to present evidence
and/or otherwise establish his innocence; it's a given? If you
cannot follow this binding instruction of law, please stand. No one
is standing. Is there anyone among you, ladies and gentlemen,
who would refuse to accept the binding instruction of law that the
mere fact that Mr. Strafford has been arrested and charged by the
Commonwealth of these alleged crimes is not evidence of his guilt
and cannot be considered by the jury as evidence of guilt? If you
cannot follow this binding instruction of law, please stand. No one
is standing.
N.T. 8/1/16, pp. 6-8, 11-12, 16-17, 18. (Emphasis added).
Once the jury was empaneled and sworn, inter alia, this court directed during its
precharge that below:
However, you have to be most mindful. Mr. Strafford has no
obligation to prove to you his innocence. He's presumed innocent,
and that presumption of innocence remains unless or until the
Commonwealth presents to you evidence that convinces you
collectively beyond a reasonable doubt he's guilty of all or some of
the crimes charged. ... Also, as I told you during your selection,
Mr. Strafford being arrested and charges [sic] with these crimes,
that's proof of nothing. His mere arrest and these allegations
26
aren't evidence of guilt and you're not to consider it as evidence of
guilt. Again, Mr. Strafford, he's presumed innocent. He doesn't
have to prove that since the burden in this criminal trial like any
other criminal matter rests solely on the Commonwealth of
Pennsylvania to establish guilt beyond a reasonable doubt.
Attentiveness, common sense, and your everyday life experience,
they're the common denominators to being a fair, impartial and
just fact finder. Each of you ladies and gentlemen, must keep an
open mind throughout the entirety of the trial. How can you make
an informed decision based on behalf [sic] of the information?
You can't. Do not form opinions about any disputed matter in this
case, whether it's guilt or innocence or anything else, until you
begin your deliberations. You will then be armed with everything
you need to make a fair, informed and just decision. You will have
heard all the evidence, you have heard the closing arguments of the
attorneys, and you will have heard my final instructions on the law.
Absent any one of those three things, any decision you make, even
if it's a preliminary formation of an opinion, it's ill advised, it's ill
informed, and it's speculation. Speculation, not surprisingly, has
no place in a criminal courtroom. You're not to discuss the case
amongst yourselves or with anyone else until have [sic] directed
you to begin your deliberations. Again, and similarly, how can
you have a meaningful and fair discussion about the case based on
a quarter, a third, a half or even 75 percent of the evidence? You
can't. [E]ven if you've heard all the evidence, if you haven't heard
the closing arguments of the attorneys and you haven't heard my
final instructions of the law, these discussions are premature.
They're not to occur because they are ill advised, they are ill
informed, and again, we're getting back to impermissible
speculation. You need those three factors, ladies and gentlemen - -
all the evidence, the closing arguments and my final legal
instruction - before your deliberations can be what they must:
informed, fair and just.
N.T. 8/1/16, pp. 77-78, 83-84.
After the close of the trial and just prior to counsel's summations, inter alia, this court
provided in its final instructions to the jury the following direction:
Ladies and gentlemen, now that you have heard all the. evidence
that's to be presented for purposes of this trial, the next step is for
the attorneys to give to you their respective closing arguments.
Even though these arguments do not constitute evidence, you
should obviously careful [sic] and attentive thought. In their
27
respective arguments, ladies and gentlemen, inevitably counsel
will call your attention to evidence they each consider material and
you to draw certain inferences from that evidence. Be mindful,
you're not bound by any recollection of the evidence the attorney
may reference. It is your memory of the evidence and your
recollection of the evidence alone that must control and guide your
deliberations. If there is a discrepancy between counsel's
recollection of the evidence and your memory of that same
evidence, you're- bound by your recollection of the evidence, not
what counsel may reference to the contrary. Moreover, you're not
limited in your consideration of the evidence to that just which is
mentioned by the attorneys in their closing arguments. You have
an obligation to consider the totality of the trial's evidentiary
presentation. All this being said, to the extent the inferences which
the attorneys may ask you to draw are supported by evidence you
find credible and appeal to your sense of reason and judgment, you
must certainly may consider and accept such during your
deliberations.
Starting with your selection, ladies and gentlemen, and
throughout the trial, I've reiterated to you it is a fundamental
principle of our criminal justice system that you must presume
Mr. Strafford is innocent. This meant and means you were to
accept that the mere fact he is charged with these crimes does not
mean he is guilty of any such allegations. The mere fact he's
been arrested is not evidence of guilt and cannot be considered by
you as evidence of guilt. Mr. Strafford, ladies and gentlemen, has
begun this case with a clean slate. He has no obligation to prove to
you his innocence. He is .presumed innocent, ladies and
gentlemen. Mr. Strafford is presumed innocent as the trial began
and progressed, and it's the Commonwealth alone who bears the
burden of convincing you he is guilty of all or some of the crimes
charged.
Your verdict must arise from your conscientious review of the
trial's facts, the following of the law which I instruct, the
application of your everyday life experiences, and your good
common sense as well as the recognition of the importance of the
oaths you took as jurors to try this casefairly and impartially.
As I told you in introducing the summations of counsel, their
arguments, their statements, they're not part of the evidence and
you shouldn't consider them as such. However, in deciding the
case you should carefully consider the -evidence in light of the
various reasons and arguments each lawyer presented. It's the
right of each lawyer to discuss the case in a manner that is more
28
favorable to the side he represents. You certainly may be guided by
an attorney's arguments to the extent it's supported it's supported
[sic] by the evidence you find credible and insofar as it aids you in
applying your own reason and common sense. Such being said,
you're not required to accept the arguments of either lawyer. It is
for you and you alone to decide the case based on the evidence as
it was presented from the witness stand in this courtroom
throughout the course of trial and in accordance with these legal
instructions I'm now providing.
It is your responsibility as jurors and
to perform your duties
reach a verdict based on the evidence as it was presented during
the trial and only the evidence as presented during trial.
However, in deciding the case's credible fact, you may properly
apply your common sense and certainly draw upon your own
everyday practical life experiences. Your deliberations must be
kept free of bias or prejudice of any kind. Both the
Commonwealth of Pennsylvania and Mr. Strafford have a right
to expect you to consider the evidence conscientiously and to
apply the law as I have outlined it to you.
N.T. 8/3/16, pp. 43-44, 90-91, 92, 105-06, 112. (Emphasis added). See also Pa. SSE (Crirn) 7.01
and 7.03.
Certainly, those persons selected to serve as jurors in light of the court's material
instructions readily appreciate that a criminal jury is an adversarial proceeding with both the
Commonwealth and defense understandably trying to advance their respective causes while also
seeking to call into question that which the other contends. This confrontational process by its
inherent nature posits in most instances an individual accused of subjecting another to
criminality. Plain common sense dictates that the prosecution believes its "victim" suffered at
the hands of the Defendant otherwise there would be no trial. Simply because the prosecution
and its police witness may refer to the person it alleges was victimized as a "victim" is just an
expected part of the trial and not the wholesale subversion of the criminal jury trial system
Defendant Strafford baldly hypothesizes.
29
Defendant Strafford at the pretrial conference proffered no supportive Pennsylvania legal
authorities for his proposition now advanced on appeal that the mere uttering at trial by the
prosecutor and/or some Commonwealth witness of the twin, "victim," " ... compromised the
fact-finding function of the jury, and served to undermine the presumption of innocence." See
Statement of Matters Complained, No. 3. See also N.T. 7/29/16, pp. 1548. . This court
subsequent has yet to uncover the same and neither has the Defendant's current counsel brought
to its attention a single such Commonwealth statute nor even one (1) applicable Superior Court
and/or Supreme Court of Pennsylvania decision. See Statement of Matters CoMplained, No. 3.
To overcome the presupposition that the jury did in fact adhere to this court's above -cited
instructions salient to his being presumed innocent, as well as the jurors fairly and impartially
discharging their factfinding function, the Defendant seemingly once more relies on nothing
more than his speculative belief that 'the term "victim" had a talismrnic impact on the jury
causing the jurors to collectively violate their oaths and summarily ignore the court's oft repeated
legal directions patently to the contrary. Commonwealth v. 0 'Hannon supra 557 Pa. at 262, 732
A.2d at 1196 citing Commonwealth v. LaCava supra. 542 Pa. at 182, 666 A.2d at 231;
Commonwealth v. Brown supra 567 Pa. at 289, 786 A.2d at 971 citing Commonwealth v. Travers
supra citing Commonwealth v. Travaglia supra; Commonwealth v. Spatz supra 587 Pa. at 57,
896 A.2d at 1224 quoting Commonwealth v. Brown supra 567 Pa. at 289, 786 A.2d at 871 and
Commonwealth v. 0 'Hannon supra 557 Pa. at 262, 732 A.2d at 1196. This assignment of error
is meritless:
30
The evidence is insufficient to sustain.the convictions for involuntary deviate sexual intercourse,
indecent assault, and corruption of minors since Mr. Strafford was not identified as the offender
beyond a reasonable doubt, especially where the complainant was not asked to identify Mr.Mr.
Strafford, did not reference his last name, and where no stipulation to identity was presented to ,
the jury.
Defendant Strafford through his final appellate complaint maintains the trial evidence
was insufficient to establish as a matter of law he was the person who sexually abused S.C. and
his convictions at bar are thus legally infirm. The Defendant in support of the same advances
that the minor complainant " ... was not asked to identify Mr. Strafford, did not reference his last
name, and where no stipulation to identity was presented to the jury." See Statement of Matters
Complained, No. 4. This final appellate complaint is without merit as a review of the full trial
record under the well -settled standard governing such claims reveals Defendant Strafford's
challenged convictions to rest on legally sufficient evidence,33
In evaluating any type of sufficiency claim, the court must accept the evidence in the
light most favorable to the Commonwealth and also drawing all rational evidentiary inferences
deteni ine whether a sensible jury could have found that each element of the crime(s) charged
was established beyond a reasonable doubt. Commonwealth v. Patterson, 940 A.2d 493, 500
(Pa.Super. 2007) and Commonwealth v. Rosario, 438 Pa.Super. 241, 260-61, 652 A.2d 354, 364
(1994) citing Commonwealth v. Calderini, 416 Pa.Super. 258, 260-61, 611 A.2d 206, 207 (1992)
citing Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). A court.
reviewing a sufficiency challenge " may not weigh the evidence and substitute [its] judgment
for the fact -finder." Commonwealth v. Orr, 38 A.3d 868, 872 (Pa.Super. 2011) citing
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011) quoting Commonwealth R Jones,
874 A.2d 108, 120-21 (Pa.Super. 2005) quoting Commonwealth v. Bullick, 830 A.2d 998, 1000
31
(Pa.Super. 2003) quoting Commonwealth v. Gooding, 818 A.2d 546, 549 (Pa.Super. 2003),
appeal denied, 575 Pa. 691, 835 A.2d 709 (2003).
The evidence at trial need not " ... preclude every possibility of innocence, and the fact
fmder is free to resolve any doubts regarding a defendant's guilt.' " Commonwealth v. Hansley.
supra 24 A.3d at 416 quoting Commonwealth v. Jones supra 874 A.2d at 120-21 quoting
Commonwealth v. Bullick supra 830 A.2d at 1000 quoting Commonwealth v. Gooding supra 818
A.2d at 549, appeal denied, 575 Pa. 691, 835 A.2d 709. Although a conviction must be based on
... more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a
mathematical certainty." Commonwealth v. Davis, 861 A.2d 310, 323 (Pa.Super. 2004) citing
Commonwealth v. Coon, 695 A.2d 794, 797 (Pa.Super. 1997). " [I]f the record contains
support for the convictions, they may not be disturbed!' Id 861 A.2d at 323-24 citing
Commonwealth v. Marks, 704 A.2d 1095, 1098 (Pa.Super. 1997) citing Commonwealth v.
Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986).
These long-established principles of law governing a sufficiency challenge are equally
applicable to cases where the evidence is circumstantial rather than direct, provided the
combination of inferential evidence links the accused to the criminality and/or establishes the
Grime's requisite element(s) beyond a reasonable doubt. Commonwealth v. Kriegler, 127 A.3d
840, 847 (Pa.Super. 2015) quoting Commonwealth v. Hartie, 894 A.2d 800, 803-04 (Pa.Super.
2006) 'quoting Commonwealth v. Thomas, 867 A.2d 594, 597 (Pa.Super. 2005). See also
Commonwealth v. Cox, 546 Pa. 515, 528, 686 A.2d 1279, 1285 (1996).
In deciding whether as a matter of law the trial evidence was sufficient to sustain a
conviction, it must be remembered " ``jwihen evaluating the credibility and weight of the
evidence, the fact fmder is free to believe all, part or none of the evidence.' " Commonwealth v.
32
Patterson supra 940 A.2d at 500 quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-77
(Pa.Super. 2006). See also Commonwealth v. Hansley supra 24 A.3d at 416. Furtheimore, the
finder of fact is tasked with being the " sole judge[ ] of the credibility and weight of all
testimony," and is certainly free to reject or accept, in whole or part, the testimony of any
witness. Pa. SKI (Cron) 2.04. Regarding the offered testimony and other trial evidence, the fact
finders in making such decisions may choose what they value and discount what they find
unpersuasive.
In the similar case of Commonwealth v, Brooks, the Superior Court found that "[b]ecause
the victims testified via closed-circuit television, in -court identification of Appellant was
impossible." Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa.Super. 2010). The appellate court
relatedly opined material to current considerations that " ... the victims' testimony, coupled with
[the CYS worker's] in -court identification, was sufficient to establish that Appellant was the
perpetrator of the sexual abuse." Id.
The facts summarized infra were credibly established at Defendant Strafford's trial.
S.C. at the time of trial was nine (9) years old. N.T. 8/2/16, p. 5. The minor complainant
detailed that his older cousin, who resided at the house, would occasionally have friends stay at
the home for extended time periods. N.T. 8/2/16, pp. 10-11. When asked by the Commonwealth
as to the name of any young men who would so visit the house, S.C. responded that an individual
named "Jay" would frequently stay overnight at the house. N.T. 8/2/16, p. 11.
The minor complainant detailed that the sexual molestation by "Jay" took place from
when he started second grade to the summer following second grade. N.T. 8/2/16, p. 14. S.C.
and "Jay" during the abusive incidents were in the basement of the residence alone. N.T. 8/2/16,
pp. 15, 17, 18, 20,
33
The minor complainant detailed that he not only saw "Jay's" penis, but that he was
touched by it. N.T. 8/2/16, p. 16. In addition to seeing "Jay's" penis, S.C. as well stated that he
also saw " ... yellow stuff when you go to the bathroom, and like white stuff' come out of
"Jay's" penis. N.T. 812/16, p. 17.
In addition to observing and being touched by "Jay's" penis, S.C. explained that on
numerous occasions he was touched on his penis over his clothing by "Jay's" hand. N.T. 8/2/16,
p. 17. On the Commonwealth inquiring as to what other part of "Jay's" body touched him, the
minor complainant replied, "his mouth." N.T. 812116, pp. 18-19, 20, 22. Per defense counsel's
queStioning, the description of this act was as follows:
Mr. Pacillio:
... [D]o you remember telling me once that you
said Jay had his mouth on your penis for about 20
seconds? Is that the?
S.C.:
Yes.
Mr. Pacillio:
And did you tell me once that Jay was chewing on
your penis during that time? He chewed on it like it
was a piece of candy?
S.C.:
Yeah. ...
Mr. Pacillio:
" And then do you remember telling me there was
little bite marks on your penis because Jay was
chewing on it, right?
34
S.C.:
Yeah.
N.T. 8/2/16, p. 27. (Emphasis added).
Prior to the conclusion of his testimony, when the prosecutor asked S.C. about to why he
did not disclose sooner the sexual abuse, the below exchange took place:
Mr. Grace:
Why didn't you tell anyone right away?
S.C.:
Because I was scared.
Mr. Grace:
What were you scared about?
S.C.:
And weirded out. Of Jay.
'Mr. Grace:
And you said you were weirded out. Is that what
you said?
S.C.:
Yeah.
Mr. Grace:
What do you mean by that?
S.C.:
Like I was weirded out by everything what he did.
N.T. 8/2/16, pp. 20-21. (Emphasis added.)
35
The minor complainant's older brother, K.C., also testified at trial. N.T. 8/2/16, p. 37.
K.C. recounted that his cousin Drew would routinely have a friend stay over the house named
"Jay Strafford." N.T. 8/2/16, p. 39. During his testimony, S.C.'s brother (K.C) made such an
in -court identification of Defendant Strafford. N.T. 8/2/16, p. 39. K.C. as well recalled how one
(1) night he and S.C. were playing football when his younger sibling said to him, "Jay has been
touching my privates." N.T. 8/2/16, p. 41.
The victim's mother, H.C., also at trial testified. N.T. 8/2/16, p. 62. H.C. explained her
younger son, the minor complaint, is nine (9) years old. N.T. 8/2/16, p. 62. On being asked by
the prosecution, H.C. advised she knew an individual by the name of James Strafford and made
an in-court identification of the Defendant as this person. N.T. 8/2/16, p. 62. The complainant's
mother offered that Defendant Strafford was friends with her nephew, S.C.'s cousin. N.T.
8/2/16, pp. 10-11, 63. H.C. described how in approximately 2011/2012, the Defendant came to
live at her family's home. N.T. 8/2/16, pp. 63-64. Defendant Strafford then resided full time at
the house and on his completion of high school, in 2012-2013, he stayed there less frequently as
he spent time at his grandmother's home. N.T. 8/2/16, pp. 64-65. However, even when living at
his grandmother's residence he would still be at the family's house most days of a week, ranging'
from visits to overnight stays. N.T. 8/2/16, p. 65.
Eventually, S.C. and his brother, K.C., approached H.C. and the minor complainant
" told [her] that Jay had been touching his penis" and "Jay had touched his bottom with his
hand and that he had seen Jay's penis." N.T. 8/2/16, pp. 70, 73. At the time S.C. disclosed to
his mother the sexual abuse, the Defendant was in the residence. N.T. 8/2/16, pp. 71, 74. H.C.
then confronted the Defendant by infoi 'ling that "[S.C.] told me that you've been touching him."
N.T. 8/2/16, p. 87.
36
Defendant Strafford via this appellate complaint argues by limiting his review of the trial
record to only the testimony of the minor complainant that as a matter of law it was not proven
he sexually molested S.C. Based on the totality of the above-detailed testimony of the minor
complainant, his older brother (K.C.) and mother (H.C.), as well as accepting such evidence in a
light most favorable to the Commonwealth and the reasoned inferences flowing from the same,
the Defendant's sufficiency challenge is just without merit.
At trial, the defense presented four (4) witnesses on behalf of Defendant Strafford as
follows: Eleanor Martone, the Defendant's grandmother; Drew Chamberlain, Defendant
Strafford's friend and cousin of S.C.; Linda Dorrell, the mother of a friend of the Defendant's;
and Laura Zimmer, Defendant Strafford's girlfriend. N.T. 8/2/16, pp. 127-36. N.T. 8/3/16, pp.
3-25, 28. Throughout the questioning of these individuals by defense counsel, he not only
referred to the Defendant as "Jay" or "Jay Strafford," but when two (2) of the witnesses
mentioned the Defendant by name they each stated, "Jay." N.T. 8/2/16, pp. 127, 128, 131, 132.
N.T. 8/3/16, pp. 4, 7, 8, 10, 11, 12, 13, 14, 18, 19, 22, 23, 28,
Similar to Commonwealth v. Brooks, the minor complainant was unable to identify the
Defendant as S.C. appeared as a trial witness thrOugh the closed circuit television.
Commonwealth v. Brooks supra 7 A.3d at 857. However, S.C. throughout his testimony was
unwavering in his statements that the person named "Jay," a friend of his older cousin would
frequently reside at their home and this individual sexually molested him. N.T. 8/2/16, pp. 11,
14, 15, 16, 17, 18, 20, 21. S.C. continuously referred to his sexual abuser by name, "Say." N.T.
8/2/16, pp. 14-20. The minor complainant did not state any other name or person other than
",Jay" as his assailant.
37
At trial, S.C.'s brother (K.C.) and mother (H.C.) both made unquestioned in-court
identifications of the Defendant. N.T. 8/2/16, pp. 39, 62. The sibling as well recounted the
complainant first telling him about the attacks, specifically that "Jay has been touching my
privates." N.T. 8/2/16, p. 41. H.C. also explained the time period and reasons behind the
Defendant residing at the family's residence and his friendship with her nephew. N.T. 8/2/16,
pp. 63-65. Throughout their testimony, H.C. and victim's brother, K.C., like the minor
complainant, both continuously referred to Defendant Strafford by "Jay," as did two (2) the
defense witnesses. N.T. 8/2/16, pp. 37-60, 62-94, 128. N.T. 8/3/16, pp. 8, 14
K.C. and the minor's mother, H.C., each identified Defendant Strafford at trial as the
individual who lived in their home and was known to them as "Jay." N.T. 8/2/16, pp. 39, 63-64,
65. In addition to these acknowledgments by the Commonwealth witnesses, two (2) defense
witnesses, Eleanor Martone and Drew Chamberlain, as well identified Defendant Strafford at
trial. N.T. 8/2/16, p. 127. N.T. 8/3/16, p. 4.
It is patently evident that despite S.C. not identifying the Defendant during his closed
circuit television testimony, his descriptions of the sexual abuser as an individual named "Jay," a
friend of his older cousin, who resided at the family home, coupled with his older brother's
(K.C.) and mother's (H.C.) testimonial appearances, as well as their and two (2) defense
witnesses' respective in-court identifications of the Defendant as "Jay" was as a matter of law
sufficient to identify the Defendant as the offender. Commonwealth v. Brooks supra 7 A.3d at
857. N.T. 8/2/16, pp. 14-21, 39, 41, 62-65, 70, 73, 87, 127. .N.T. 8/3/16, p. 4.
Based on the foregoing trial evidence, when viewed in the light most favorable to the
prosecution together with the rational inferences such reasonably allows, there was at trial legally
sufficient evidence establishing Defendant Strafford was the sexual molester of S.C. and the
38
Defendant's convictions are as a matter of law sound. See generally Commonwealth v. Patterson
supra 940 A.2d at 500 and Commonwealth v. Kriegler supra 127 A.3d at 847 quoting
Commonwealth v. Hartle supra 894 A.2d at 903-04 quoting Commonwealth v. Thomas supra
867 A.2d at 597. The trial record most certainly contains more than sufficient evidence to
support the jury's finding that Defendant Strafford was the perpetrator of these crimes.
The jury as the " sole judger] of the credibility and weight of all testimony" was "free
to believe all, part or none of the evidence." Pa. SSJI (Crim) 2.04. See also Commonwealth v.
Patterson supra 940 A.2d at 500 quoting Commonwealth v. Emler supra 903 A.2d at 1276-77.
In reviewing Defendant Strafford's sufficiency challenge to his involuntary deviate
sexual intercourse,34 indecent assault,35- and corruption of minors convictions,36 the court
" ... may not weigh the evidence and substitute [the court's] judgment for the fact-finder."
Commonwealth v. Orr supra 38 A.3d at 872 citing Commonwealth v. Hansley supra 24 A.3d at
416 quoting Commonwealth v. Jones supra 874 A.2d at 120-21 quoting Commonwealth v.
Bullick supra 830 A.2d at 1000. If the court finds " the record contains .support for the
convictions," the decision must remain as the jury concluded. Commonwealth v. Davis supra
861 A.2d at 323-24 citing Commonwealth v. Marks supra 704 A.2d at 1098 citing
Commonwealth v. Mudrick supra 510 Pa. at 308, 507 A.2d at 1213.
Conclusion
For all the above reasons, Defendant Strafford's convictions and judgment of sentence
should be affirmed.
5
39
See Commonwealth v. Strafford, No. MD 2950-14. See also Footnote 6,
2 18 Pa.C.S. §3126.
3 18 Pa.C.S. §6301.
The Commonwealth through this petition sought to have the court permit the introduction at bar of certain verbal
and nonverbal hearsay statements of the eight (8) year old, minor complainant (hereinafter described as
"S.C.,"
"complainant," and/or "minor complainant"). See Petition to Admit Out -of-Court Statements Under the "Tender
Years Hearsay Exception." See generally 42 Pa.C.S. §5988.
(8) year old
5Through this motion the prosecution requested the court allow the testimonial appearance of the eight
alternative method of close circuit television. See Motion to Allow a Child
complainant via the contemporaneous,
Under the Pennsylvania Uniform Child Witness Testimony by Alternative Methods Act. See
Witness to Testify
generally 42 Pa.C.S, §5985.
As the Commonwealth lodged the two (2) pleadings prior to this matter being before the trial court,
the relevant
6
filings and the resultant hearing (March 24, 2015) proceeded under a miscellaneous docket, No, MD 2950-14, See
Commonwealth v, Strafford, No, MD 2950-14,
and was
7 Immediately prior to the evidentiary proceedings' conclusion (March 24, 2015), defense counsel requested
allowed leave to submit written argument in support of denying the prosecution's tender years hearsay petition.
received from the
N.T. 3/24/15, pp. 121-22. See generally 42 Pa.C.S. §5985.1. On April 10, 2015, the court
Defendant's attorney this legal memorandum opposing the Commonwealth's petition to admit certain statements
under the tender years hearsay exception. See Defendant's Brief dated April 10, 2015. See also Order dated April
13, 2015.
8 18 Pa.C.S. §3123,
9 18 Pa.C.S. §3126(a)(7).
10
18 Pa.C.S. §6301(a)(1)(ii).
11 18 Pa.C.S, §3123(a)(7).
32
The court in separate orders also dated February 8, 2016, directed a full copy of the unredacted documents
previously forwarded to it by Children and Yotith Services of Delaware County, as well as a complete copy of those
same materials with the redactions resulting from its in camera review, were both to be made part of the case record
under seal. See Orders dated February 8, 2016.
13 18 Pa,C,S. §3123(b).
14 See generally 42 Pa.C.S. §5988.
15 18 Pa.C.S. §3126(a)(7).
16 18 Pa.C.S. §6301(a)(1)(ii),
17 18 Pa.C.S. §3123(b).
18 42 Pa.C.S. §9799.24. See also Commonwealth v. Whanger, 30 A.3d 1212, 1214 (Pa.Super.
2011) and
Whanger supra 30 A.3d
Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa.Super. 2016) citing Commonwealth v.
at 1214.
19 18 Pa.C.S. §3123(b).
20 18 Pa.C.S. §3126(a)(7).
21 18 Pa.C.S. §3123(b),
22 18 Pa,C,S. §6301(a)(1)(ii).
23 18 Pa.C.S. §3126(a)(7).
24 61 Pa.C.S. §§4501 et seg.
did
25In lieu of that which this salient statute provides otherwise, defense counsel for trial purposes understandably
not want him and Defendant Strafford physically separate when the minor complainant testified, even with the
40
required adequate means to communicate arranged between he and his client, (E.g. The court, prosecutor and
Defendant's attorney all in the complainant's immediate company during his testimony examination while
Defendant Strafford remained in the courtroom with the jury alone.) See Pretrial Motion In Limine [sic] Count 2.-
See also 42 Pa.C.S. §5985(a). Hence, the Commonwealth and defense reached an agreement though which the live
video feed of the S.C.'s testifying at trial would show both he and the victim advocate allowing for the court,
assistant district attorney, Defendant Strafford and his lawyer to collectively stay in the courtroom and the jury's
direct presence. See Order dated July 29, 2016. See also N.T. 7/29116, pp. 5-19.
26
In an effort to guard against the public disclosure of the minor complainant's identity, the court given the familial
relationships has throughout this opinion substituted in lieu of referencing his brother's and mother's names their
respective initials as applicable. See generally 42 Pa.C.S. §5988.
21 This court being mindful of the out of the norm manner in which S.C. was testifying repeatedly from literally the
trial's outset provided the jurors with cautionary instructions, These directives reiterated to the jurors that they were
to not in any manner evaluate this testimony differently than that of any other trial witness.
Starting with the general voir dire of the venire panel this court instructed as follows:
Ladies and gentlemen, witnesses presenting testimony during a trial are
normally required to appear before you in person to offer their testimony. The
laws of Pennsylvania, however, permit the testimony of young children to be
taken in a setting other than the courtroom and presented to you through
electronic means. It is anticipated that [S.C.] will testify at trial via a live
closed-circuit or video conferencing system. [S.C.'s] testimony, ladies and
gentlemen, is entitled to no more or less weight than that of any other witness
because of it being electronically offered to you. Rather, his testimony is to be
evaluated by you in the same way in which you will evaluate the testimony of
all other witnesses in this case. Is there anyone among, you; ladies and
gentlemen, who would or could not, rather, accept this binding instruction of
law? If so, please stand. No one is standing.
N.T. 8/1/16, pp. 18-19.
Immediately prior to the testimony of the S.C., the court again provided the cautionary directive below:
Ladies and gentlemen, as you see, and as I told you yesterday, witnesses
appearing for purposes of trial are normally required to do so in person from the
witness [stand]. As I relatedly instructed yesterday, the law of Pennsylvania
does permit a young child to offer testimony through electronic means.
Obviously that's what we're doing imminently. As I also told you yesterday,
[S.C.'s] testimony is to be evaluated by you in the same way in which you
would evaluate the testimony of all other witnesses you may hear in this case,
N.T. 8/2/16, p. 3.
This court during its final charge to the jury once more reiterated that the minor complainant's testimony was to be
evaluated by them in the same manner as they would the other witnesses:
As I noted during your selection, I mentioned again at trial witness testimony
during a trial is usually presented to you from the witness stand directly,
However, the laws of Pennsylvania do permit testimony of young children to be
taken in a setting other than the courtroom and presented live to you through
electronic means. As you'll remember, [S.C.] testified during trial via such
electronic means. [S.C.'s] testimony is to be evaluated by you in the same way
41
in which you will evaluate the testimony of all other witnesses in the case as
I've already so instructed.
N.T. 8/3/16, pp. 97-98. See also Pa. SKI (Crim) 4.18.
Further, relevant to these related cautionary instructions about the complainant's testifying via a live, closed circuit
television feed, "falbsent evidence to the contrary, the jury is presumed to have followed the trial court's
instructions." Commonwealth v. 01-Lannon, 557 Pa. 256, 262, 732 A.2d 1193, 1196 (1999) citing Commonwealth v.
LaCava, 542 Pa. 160, 182, 666 A.2d 221, 231 (1995); Commonwealth v. Brown, 567 Pa. 272, 289, 786 A.2d 961,
971 (2001), certiorari denied, 537 U.S. 1187, 123 S. Ct. 135, 154 L. Ed. 2d 1018 (2003) citing Commonwealth v.
Travers, 564 Pa. 362, 768 A.2d 845 (2001) citing Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995);
Commonwealth v. Spatz, 587 Pa. 1, 57, 896 A.2d 1191, 1224 (2006) quoting Commonwealth v. Brown supra 567 Pa.
at 289, 786 A.2d at 871 and Commonwealth v. 0 'Hannon supra 557 Pa. at 262, 732 A.2d at 1196.
28 Based on the presented trial evidence, the sexual victimization of the minor complainant was ongoing from at
least age seven (7) through shortly before his initial disclosure to K.C, a few months subsequent to S.C.'s 8th
birthday.
It was relatedly without dispute that the minor complainant, S.C,, throughout the times of the at issue statements
was eight (8) years of old and the salient statute's age requirement was thus met. N.T. 3/24/15, pp. 4, 23. See also
42 Pa.C.S. §5985.1(a).
By the plain terms of this complaint on appeal, the Defendant neither challenges the age of the minor victim, his
subsequent at bar testimonial appearance(s) nor the various statements' relevancy. See Statement of Matters
Complained, No. 2. See also Commonwealth v. Walter supra and Fidler v. Cunningham -Small, 871 A.2d 231
(Pa.Super. 2005); and Commonwealth v. Allhouse, 614 Pa. 229, 36 A.3d 163 (2012), cert. denied, U.S. 133
S. Ct. 2336 (2013). Resultantly, any arguments based on these statutory requirements 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."); Commonwealth v. Carpenter, 955 A.2d 411, 415 (Pa.Super. 2008) citing
Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998); and Commonwealth v. Baker, 24 A.3d 1006,
1034-35 (Pa.Super. 2011) citing Commonwealth v. Priest, 18 A.3d 1235, 1239 Fn. 7 (Pa.Super. 2011) and
Commonwealth v. Jackson, 10 A.3d 341, 347 Fn. 4 (Pa.Super. 2010).
See Commonwealth Exhibits CM-1
29 - Jodi Kaplan's Forensic Interview Report and CM-2 - Audio Recording of
December 8, 2014, Forensic Interview,
" See Commonwealth Exhibit C-3(B) -Anatomical Diagram(s). See also N.T. 3/24/15, p. 81.
31 See Commonwealth Exhibit CM-3 -Audio Recording of Trooper Pipes' December 16, 2014, Interview.
32
Although K.C. could not recall the exact date his brother advised him of the Defendant's sexual assaults, he did
testify that it was on the same day the police were contacted. N.T. 3/24/15, pp. 8-9. The Criminal Complaint and
Probable Cause Affidavit denote that the police responded to the residence on December 7, 2014, at 12:30 A.M. See
Criminal Complaint and Probable Cause Affidavit
u Defendant Strafford in setting forth his sufficiency challenge does not contend the prosecution's trial evidence
failed to establish any of his convictions' necessary elements beyond the identification of the Defendant as the
individual who committed these crimes. See Statement of Matters Complained, No. 4. Accordingly, these
otherwise requisite elements of these three (3) offenses (involuntary deviate sexual intercourse, 18 Pa.C.S. §3123(b),
indecent assault; 18 Pa.C.S. §3126(a)(7), and corruption of minors, 18 Pa.C.S. §6301(a)(1)(ii)) will not in this
opinion be discussed. See Commonwealth v. Veon, 109 A.3d 754, 775 (Pa.Super. 2015), appeal granted on other
grounds, 121 A.3d 954, 955 (Pa. 2015)("In order to preserve a challenge to the sufficiency of the evidence on
appeal, the appellant's Rule 1925(b) statement must state with specificity the element or elements of the crime
upon which the appellant alleges the evidence was insufficient. See Commonwealth v. Garland, 63 A.3d 339, 344
(Pa.Super. 2013); Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009). 'Such specificity is of particular
42
importance in cases, where, as here, the appellant was convicted of multiple crimes each of which contains
numerous elements that the Commonwealth mast prove beyond a reasonable doubt.' "). (Emphasis added.) See
also Commonwealth v. McCree, 857 A.2d 188, 192 (Pa.Super. 2004) citing Commonwealth v. Lemon, 804 A.2d 34,
37 (Pa.Super. 2002) and Commonwealth v. Seibert, 799 A.2d 54, 62 (Pa.Super. 2002). See also Pa. SKI (Crim)
15.3123E, 15.3126C, and 15.6301A.
Similarly, as the Defendant has not averred through his appellate complaints statement a weight of the evidence
challenge to Ms convictions at bar, such a claim on appeal, if now advanced, should as well be deemed waived. See
Commonwealth v. Peon supra 109 A.3d at 775; Commonwealth v. McCree supra 857 A.2d at 192 citing
Commonwealth v. Lemon supra 804 A.2d at 37 and Commonwealth v. Seibert supra 799 A.2d at 62. See also
Statement of Matters Complained.
Moreover, any attack targeting the weight of the evidence was past waived given that Defendant Strafford did not
pursue the same before this court. For a weight of the evidence argument to be properly raised on appeal, such a
claim " ... must [have been] preserved either in a post -sentence motion, by a written motion before sentencing, or
orally prior to sentencing." Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012) citing Pa.R.Crim.P. 607
and Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa.Super. 2011). "Failure to challenge the weight of the
evidence presented at trial in an oral or written motion prior to sentencing or in a post-sentence motion will result in
waiver of the claim." Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa.Super. 2012) citing Commonwealth v. Bond,
604 Pa. 1, 16-17, 985 A.2d 810, 820 (2009). See also Pa.R.Crim.P. 607(a)(Comment).
34 18 Pa.C.S. §3123(b).
35 18 Pa.C.S. §3126(a)(7).
36 18 Pa.C.S. §6301(a)(1)(ii).
43