Com. v. Hanley, D.

J-S54022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL SCOTT HANLEY
Appellant No. 2178 MDA 2013
Appeal from the Judgment of Sentence July 15, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001724-2011
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 05, 2014
Appellant, Daniel Scott Hanley, appeals from the July 15, 2013
aggregate judgment of sentence of nine to 23 years’ incarceration, imposed
after a jury found him guilty of three counts of dissemination of obscene or
explicit sexual materials to minors, one count of corruption of minors by
course of conduct, eight counts of corruption of minors by specific act, 23
counts of indecent assault, and 23 counts of harassment.1 After careful
review, we affirm the judgment of sentence.
The certified record discloses the following facts and procedural history
of this case. On August 30, 2011, the Pennsylvania State Police, at
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1
18 Pa.C.S.A. §§ 5903(c), 6301(a)(ii), 6301(a)(i), 3126(a)(7)-(8), and
2709, respectively.
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Rockview, filed a criminal complaint charging Appellant with multiple
offenses, stemming from numerous alleged instances of Appellant’s improper
conduct and contact with his minor stepdaughter and her friends, which had
taken place between spring 2010 and April 2011. These acts included
exposing the victims to sexually explicit images, videos, texts, and sex toys,
and repeated instances of inappropriate “flicking” of the victims’ breasts.
The complaint’s 27 criminal counts and 23 summary counts were bound over
to the trial court following the September 7, 2011 preliminary hearing. By
order dated April 15, 2013, the trial court granted the Commonwealth’s
motion to amend its information to add 15 additional criminal counts. The
matter proceeded to a jury trial on April 18, 2013, at the conclusion of which
the jury found Appellant guilty of 35 of the aforementioned crimes and the
trial court found Appellant guilty of all the aforementioned summary
offenses.2
On July 15, 2013, the trial court sentenced Appellant to an aggregate
term of incarceration in a state correctional institution of not less than nine
nor more than 23 years plus a $100.00 fine on each summary count. On
July 23, 2013, Appellant filed a timely post-sentence motion. A hearing on
Appellant’s post-sentence motion was held on September 16, 2013. The
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2
The jury found Appellant not guilty of one count of dissemination of
obscene or explicit sexual materials to minors, one count of indecent assault,
and five counts of Section 6301(a)(i) corruption of minors.
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trial court denied the requested post-sentence relief on November 20,
2013.3 On December 4, 2013, Appellant filed a timely notice of appeal.4
On appeal, Appellant raises the following issues for our review.
I. Did permitting the [Children and Youth
Services (CYS)] caseworker to testify that the
Child’s allegations were “indicated” constitute
reversible error as it improperly bolstered the
credibility of the witnesses?
II. Did the failure to give timely requested lack of
prompt complaint jury instructions constitute
reversible error?
III. Did the failure to permit character evidence
regarding [Appellant’s] reputation in the
community for non-violence constitute
reversible error?
Appellant’s Brief at 8.
In his first and third issues, Appellant challenges the trial court’s
evidentiary rulings. We therefore elect to address these issues first. In
considering evidentiary issues, we are guided by the following principles.
The standard of review for a trial court’s evidentiary
rulings is narrow. The admissibility of evidence is
solely within the discretion of the trial court and will
be reversed only if the trial court has abused its
discretion. An abuse of discretion is not merely an
error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
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3
On October 11, 2013, Appellant’s privately retained trial counsel filed a
petition to withdraw, citing Appellant’s financial constraints. The trial court
granted the motion on November 20, 2013, and on November 26, 2013,
appointed the Centre County Public Defender’s Office to represent Appellant.
4
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record.
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation
omitted), appeal denied, 87 A.3d 319 (Pa. 2014). In order to be entitled to
relief based on a showing of a clear abuse of discretion in an evidentiary
ruling, actual resulting prejudice must be established. Commonwealth v.
O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citation omitted). “[I]f in
reaching a conclusion the trial court over-rides or misapplies the law,
discretion is then abused and it is the duty of the appellate court to correct
the error.” Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super.
2009) (citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009). “Even
when a trial court does err, however, the error does not necessarily warrant
reversal[,]” if the error is harmless. Commonwealth v. Huddleston, 55
A.3d 1217, 1223 (Pa. Super. 2012) (citation omitted), appeal denied, 63
A.3d 774 (Pa. 2013).
In his first issue, Appellant contends that the trial court erred when it
permitted the Commonwealth to elicit testimony from Leslie Young, the
Centre County CYS case worker, about the conclusion reached in the report
she issued when first investigating the allegations of Appellant’s abuse
toward his step-daughter, O.W.5 Appellant’s Brief at 16. Specifically,
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5
A report of suspected child abuse may be determined to be either
“indicated,” “founded,” or “unfounded.” 23 Pa.C.S.A. §§ 6337, 6338.
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Appellant contends, “the Commonwealth [] put the seasoned veteran
[caseworker] on the stand to say that she believed O.W. [] to bolster the
credibility of O.W.” Id. at 19. “Expert testimony may not be used to bolster
the credibility of witnesses because witness credibility is solely within the
province of the jury.” Commonwealth v. Johnson, 690 A.2d 274,
276 (Pa. Super. 1997).
We first address whether this issue has been properly preserved for
appeal. Our Supreme Court has “noted that it is beyond cavil that if the
ground upon which an objection is based is specifically stated, all other
reasons for its exclusion are waived.” Commonwealth v. Smith, 985 A.2d
886, 904 (Pa. 2009) (internal quotation marks and citations omitted), cert.
denied, 131 S. Ct. 77 (2010). Additionally, this Court has held that a
nebulous objection that fails to implicate the grounds later argued on appeal
is insufficient to preserve that issue on appeal. Commonwealth v. King,
959 A.2d 405, 419 (Pa. Super. 2008). “In order to preserve an issue for
review, a party must make a timely and specific objection. Also, an
appellant may not raise a new theory for an objection made at trial on his
appeal.” Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super.
2003) (internal quotation marks and citations omitted), appeal denied, 845
A.2d 816 (Pa. 2004). “[I]ssues raised in a timely optional post-sentence
motion [are preserved], provided those issues were properly preserved at
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the appropriate point in the proceedings.” Commonwealth v. Kohan, 825
A.2d 702, 705-706 (Pa. Super. 2003) (citation omitted).
Instantly, the relevant testimony during the Commonwealth’s direct
examination of the CYS caseworker, and defense counsel’s objection thereto,
transpired as follows.
Q. Did you go over things with [O.M.]?
A. I did. I was gathering information for
my report. What we have to do is we have up to 60
days when we receive this type of report to file a
final report with Child Line. We can file it as
unfounded, which means that either we don’t believe
it happened or –
[DEFENSE COUNSEL]: Your Honor, I’m going
to object to these conclusions as well. This is a civil
matter, it has nothing to do with the criminal case
that’s at issue. Whether it’s indicated, unfounded,
and I’m sure Ms. Young knows the other one, it has
nothing to do with the criminal case.
[ASSISTANT DISTRICT ATTORNEY]:
Judge, it absolutely does because it goes to
what happened with [O.M.] and her brother and
[C.W.]
THE COURT: All right. Objection’s
overruled.
N.T., 4/18/13, at 234-235. The witness then explained that, after speaking
with O.M. and her mother, she filed her report as indicated, and explained
the subsequent protective actions she took based on the report. Id. at 235-
236.
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Thus, Appellant’s objection to the challenged testimony, as stated at
trial, was based on the relevance of the caseworker’s conclusions in a civil
matter to the criminal case at hand. Appellant did not aver that the
testimony was inadmissible as improper bolstering of a witness’s credibility
by an expert witness. Appellant first raised this ground for his objection in
his post-sentence motion.6 We therefore conclude that, for purposes of
appeal, Appellant has waived his first issue. See Smith, supra; Duffy,
supra.
In his third issue, Appellant claims the trial court abused its discretion
in sustaining the Commonwealth’s objection to his proffer of character
witnesses to testify about Appellant’s reputation for peacefulness and
nonviolence. Appellant’s Brief at 24.7
[T]he charges have been legislatively categorized as
“sexually violent offenses” per 42 Pa.[C.S.A.]
§ 9799.12 [] and 42 Pa.[C.S.A.] § 9799.14 []
(emphasis added). Therefore, [Appellant’s]
reputation for peacefulness and non-violence was
highly relevant to the inquiry and should have been
admitted.
Id. at 25.
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6
In his post-sentence motion, Appellant also raised other grounds for
inadmissibility, including that the evidence was irrelevant, inflammatory, and
unduly prejudicial, but has not pursued these claims on appeal.
7
The trial court also denied Appellant’s proffer of character witnesses to
testify about his reputation for veracity. Appellant has not challenged that
ruling in his brief on appeal. The trial court did permit Appellant to present
character evidence as to his reputation for law-abidingness. N.T., 4/18/13,
at 311-312.
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The trial court acknowledged the statutory definition of the corruption
of minors involving a course of conduct charge, and the indecent assault
charges as “sexually violent offenses” for the purpose of the Sexual Offender
Registration and Notification Act. See 42 Pa.C.S.A. §§ 9799.12, 9799.14.
However, the trial court reasoned that “[i]n this case, [] the underlying acts
constituting these crimes were not violent acts, nor was violence used in the
perpetration of these acts.” Trial Court Opinion, 11/20/13, at 4. We agree.
It has long been the law in Pennsylvania that an
individual on trial for an offense against the criminal
law is permitted to introduce evidence of his good
reputation in any respect which has proper relation
to the subject matter of the charge at issue.
Evidence of good character is to be regarded as
evidence of substantive fact just as any other
evidence tending to establish innocence and may be
considered by the jury in connection with all the
evidence presented in the case on the general issue
of guilt or innocence. Evidence of good character
offered by a defendant in a criminal prosecution
must be limited to his general reputation for the
particular trait or traits of character involved in the
commission of the crime charged. In a case where
the crime charged is one of violence, evidence of
reputation for non-violent behavior is admissible.
Commonwealth v. Harris, 785 A.2d 998, 1000 (Pa. Super. 2001) (internal
quotation marks and citations omitted), appeal denied, 847 A.2d 1279 (Pa.
2004).
Such evidence must relate to a period at or about
the time the offense was committed … and must be
established by testimony of witnesses as to the
community opinion of the individual in question, not
through specific acts or mere rumor.
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Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super. 2003) (internal
quotation marks and citations omitted), appeal denied, 830 A.2d 975 (Pa.
2003).
Instantly, the corruption of minors by course of conduct and indecent
assault charges were based on Appellant’s inappropriate touching, described
as “flicking the breasts” of the minor victims, and his acts exposing them to
sexually explicit images and objects. Amended Information, 4/17/13, at 1-
14. There were no allegations that Appellant employed force or coercion or
inflicted any physical pain or injury. Id. In these circumstances, we agree
with the trial court that the relevance of Appellant’s reputation for
peacefulness and nonviolence is properly viewed through the lens of his
alleged actions, i.e., “the particular trait or traits of character involved in
the commission of the crime charged,” and not on a general statutory
designation of an offense for collateral purposes. Lauro, supra (emphasis
added). In light of the nature of the allegations of Appellant’s actual conduct
in this case, we discern no abuse of discretion by the trial court in sustaining
the Commonwealth’s objection to Appellant’s presentation of character
evidence for peacefulness and nonviolence. See O’Black, supra.
We lastly address Appellant’s second issue, in which he faults the trial
court for refusing to provide a charge to the jury about the implications of
the victims’ delay in reporting the offenses. Appellant’s Brief at 21.
The trial court committed reversible error in failing to
read [Appellant’s] Points For Charge Numbers 13,
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14, 15, and 16 or provide any other instruction to
the jury on the potential evidentiary significance of
the complaining witnesses’ lack of a prompt
complaint in accordance with 18 Pa.[C.S.A.] § 3105
[] as [Appellant’s] conduct allegedly continued to
occur for over a year without any of the witnesses
ever reporting the conduct to an adult [until] after
[Appellant’s] wife accused him of having an
adulterous affair.
Id.8
We address such challenges with the following principles in mind.
In reviewing a challenge to the trial
court’s refusal to give a specific jury
instruction, it is the function of this Court to
determine whether the record supports the
trial court’s decision. In examining the
propriety of the instructions a trial court
presents to a jury, our scope of review is to
determine whether the trial court committed a
clear abuse of discretion or an error of law
which controlled the outcome of the case. A
jury charge will be deemed erroneous only if
the charge as a whole is inadequate, not clear
or has a tendency to mislead or confuse, rather
than clarify, a material issue. A charge is
considered adequate unless the jury was
palpably misled by what the trial judge said or
there is an omission which is tantamount to
fundamental error. Consequently, the trial
court has wide discretion in fashioning jury
instructions. The trial court is not required to
give every charge that is requested by the
parties and its refusal to give a requested
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8
Appellant preserved this issue with a timely objection at trial. N.T.
4/18/13, at 342, 343, 419. See Commonwealth v. Pressley, 887 A.2d
220, 224 (Pa. 2009) (holding “a specific objection to the charge or an
exception to the trial court’s ruling on a proposed point [is required] to
preserve an issue involving a jury instruction”).
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charge does not require reversal unless the
Appellant was prejudiced by that refusal.
Commonwealth v. Thomas, 904 A.2d 964, 970
(Pa. Super. 2006) (internal citations, quotation
marks, and brackets omitted).
The premise for the prompt complaint
instruction is that a victim of a sexual assault would
reveal at the first available opportunity that an
assault occurred. See id. The instruction permits a
jury to call into question a complainant’s credibility
when he or she did not complain at the first available
opportunity. See Commonwealth v. Prince, 719
A.2d 1086, 1091 (Pa. Super. 1998). …
“The propriety of a prompt complaint
instruction is determined on a case-by-case basis
pursuant to a subjective standard based upon the
age and condition of the victim.” Thomas, 904 A.2d
at 970. For instance, “[w]here an assault is of such
a nature that the minor victim may not have
appreciated the offensive nature of the conduct, the
lack of a prompt complaint would not necessarily
justify an inference of fabrication.” Commonwealth
v. Jones, 449 Pa.Super. 58, 672 A.2d 1353, 1357 n.
2 (1996).
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013), appeal
denied, --- A.3d ---, 835, 836 MAL 2013 (Pa. 2014).
In such an assessment the witness’ understanding of
the nature of the conduct is critical. Where the
victim did not comprehend the offensiveness of the
contact at the time of its occurrence, the absence of
an immediate complaint may not legitimately be
used to question whether the conduct did in fact
occur.
Commonwealth v. Snoke, 580 A.2d 295, 298-299 (Pa. 1990) (citations
omitted).
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Instantly, the trial court, in making that assessment, advanced the
following reasons for declining to provide a prompt complaint instruction to
the jury.
In the case sub judice, the inappropriate acts
perpetrated by [Appellant] took place over the
course of approximately two years before the victims
reported [Appellant’s] misconduct. The delay in
reporting the misconduct, however, was likely in part
due to the fact that the victims did not fully
comprehend the offensive nature of [Appellant’s]
conduct.
Trial Court Opinion, 11/20/13, at 8.
In Snoke, our Supreme Court noted the specific nature of the
offending acts and the relationship between an offender and a minor victim
are relevant to the assessment of whether a prompt complaint instruction is
warranted.
Where no physical force is used to accomplish the
reprehensible assault, a child victim would have no
reason to promptly complain of the wrong-doing,
particularly where the person involved is in a position
of confidence. Where such an encounter is of a
nature that a minor victim may not appreciate the
offensive nature of the conduct, the lack of a
complaint would not necessarily justify an inference
of a fabrication.
Snoke, supra at 299.
Citing Snoke, the trial court noted, “[Appellant’s] inappropriate acts
occurred without the use of physical violence or intimidation, and many of
them occurred while he was supervising his stepdaughter and her friends.”
Trial Court Opinion, 11/20/13, at 8. Thus, the trial court has performed the
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required evaluation of the particular circumstances in this case, and our
review discloses the trial court’s findings are supported by the record. We
discern no abuse of discretion in the trial court’s refusal to instruct the jury
on the victims’ delay in reporting the instant offenses. Consequently, we
conclude Appellant’s second issue is without merit. See Sandusky, supra.
In conclusion, we find no merit in Appellant’s issues on appeal. His
objection to the testimony of the CYS caseworker as improper bolstering of
O.W.’s credibility is waived for failure to object on that ground at trial.
Appellant’s objection to the trial court’s refusal to permit testimony about his
reputation for nonviolence is meritless because violence was not implicated
in the acts alleged. Finally, the trial court did not abuse its discretion in
declining to give a prompt complaint instruction to the jury as it was
inapplicable under the particular circumstances of this case. Accordingly, we
affirm the July 15, 2013 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2014
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