Com. v. Neff, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH J. NEFF, :
:
Appellant : No. 1839 MDA 2018
Appeal from the Judgment of Sentence Entered May 8, 2018
in the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000776-2017
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: NOVEMBER 5, 2019
Joseph J. Neff (“Neff”) appeals from the judgment of sentence imposed
after a jury convicted him of approximately 350 counts of unlawful contact
with a minor, 125 counts each of aggravated indecent assault and indecent
assault, 100 counts of involuntary deviate sexual intercourse with a child, 25
counts of corruption of minors, and one count each of rape of a child and
statutory sexual assault.1 We affirm.
Between approximately 2009 to 2016, Neff perpetrated various sexual
offenses against a minor female, E.B. (the “victim”), the sister of Neff’s
estranged wife. Neff began sexually assaulting the victim when she was
approximately 8 years old. The assaults usually occurred while the victim was
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1 See 18 Pa.C.S.A. §§ 6318(a)(1), 3125(a)(7) and (a)(8), 3126(a)(7) and
(a)(8), 3123(b), 6301(a)(1), 3121(c), 3122.1.
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in the care and custody of Neff and his wife. The crimes were reported to the
State College Police Department in April 2017. While Neff was being
interviewed at the police department, he admitted that he had committed
various sexual assaults against the victim. The police subsequently charged
Neff with the above-mentioned offenses.
The matter proceeded to a jury trial on November 30, 2017. Notably to
this appeal, prior to opening statements, the trial court permitted the
Commonwealth, over a defense objection, to publish to the jury three
photographs of the victim (collectively, the “Photographs”). These
Photographs, which depicted the victim with family members and alone, were
taken when the victim was approximately 10 and 11 years old.2 Neff’s counsel
argued that the Photographs were irrelevant, inflammatory, and unduly
prejudicial to Neff. The trial court permitted the Commonwealth to introduce
the Photographs, with the understanding that they could not be published
during its opening statement.
In its case-in-chief, the Commonwealth presented the testimony of
several witnesses, including the victim and Neff’s former romantic partner,
Amanda Nisely (“Nisely”). Nisely testified, in relevant part, that (1) Neff had
confessed to her (in a letter and in a subsequent statement) that he sexually
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2 The Commonwealth sought to introduce the Photographs to demonstrate to
the jury what the victim looked like when she was assaulted by Neff, as
opposed to her appearance at trial, when she was 16 years old.
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assaulted the victim; and (2) Nisely believed Neff’s confession to be truthful.3
In response to this testimony, Neff’s counsel moved for a mistrial, urging that
Nisely’s prohibited testimony was inadmissible pursuant to a pretrial ruling on
a defense Motion in limine.4 Although the trial court denied Neff’s Motion for
a mistrial, it immediately gave the jury a curative instruction, which Neff’s
counsel had requested. Neff testified on his own behalf and denied committing
most of the charged crimes. At the close of trial, the jury found Neff guilty of
the above-mentioned offenses.
On May 8, 2018, the trial court imposed an aggregate sentence of 28 to
56 years in prison. Neff timely filed a Post-sentence Motion, wherein he
challenged the sufficiency and weight of the evidence supporting his
convictions. Following the trial court’s denial of this Motion on October 10,
2018, Neff timely filed a Notice of Appeal. The trial court ordered Neff to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
Neff timely complied. The court then issued a Rule 1925(a) Opinion.
Neff presents the following issues for our review:
1. Whether the lower court properly permitted the
Commonwealth to introduce photographs of the alleged
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3 Specifically, Nisely opined that Neff’s admissions to her “[were] not
something fabricated[,]” i.e., because they had come from “Neff’s own
mouth[.]” N.T., 11/30/18, at 191; see also id. (wherein Nisely stated that
she was glad that Neff was “an honest enough person to admit it[.]”). We will
hereinafter refer to these statements as “Nisely’s prohibited testimony.”
4 The court’s granting of the Motion in limine excluded at trial any opinion
testimony on the matter of Neff’s credibility.
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victim and her family[,] which were not relevant to the
issues at trial[?]
2. Whether the trial court erred in refusing to grant a mistrial[,]
when [Nisely] violated a Motion in limine Order and
expressed an opinion on the guilt of [Neff?]
Brief for Appellant at 5 (capitalization omitted).
In his first issue, Neff argues that the trial court erred as a matter of law
in permitting the Commonwealth, over his objection, to introduce the
Photographs at trial,5 as they were irrelevant and unduly prejudicial. See id.
at 11-13. According to Neff, the Commonwealth sought to introduce the
Photographs for the improper purpose of garnering sympathy from the jury.
Id. at 12. Neff additionally emphasizes that the trial court did not give any
jury instruction concerning the Photographs, which, he asserts,
“compound[ed] the prejudice[.]” Id. at 13.
This Court has stated the well-established standard of review for
admission of evidence claims as follows: “[I]n reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the trial court upon
a showing that it abused its discretion or committed an error of law. … To
constitute reversible error, an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining party.” Commonwealth
v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation omitted).
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5 The Commonwealth introduced the Photographs on two occasions: during
the victim’s testimony and during the Commonwealth’s closing argument.
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In its Opinion, the trial court addressed this claim, and set forth the
relevant law, as follows:
In overruling [Neff’s] objection [to the admission of the
Photographs], the [trial c]ourt accepted the Commonwealth’s
argument that the [P]hotographs were not inflammatory, and that
they were relevant to demonstrating the victim’s age at the time
of the crimes.
In determining whether a photograph is inflammatory, a
court should determine whether the picture is “so gruesome it
would tend to cloud the jury’s objective assessment of the guilt or
innocence of the defendant.” Commonwealth v. Funk, 29 A.3d
28, 33 (Pa. Super. 2011). The [P]hotographs at issue in the case
at bar were of the child victim and members of her family; there
was nothing gruesome about them, and the [c]ourt [initially did]
not believe there was any error in overruling the objection on this
basis. Based on appellate cases decided since the time of trial,
however, the [c]ourt believes [that] admission of the
[P]hotographs[,] over [Neff’s] relevancy objection[,] was in error.
Specifically, in Commonwealth v. Vucich, 194 A.3d 1103 (Pa.
Super. 2018), a case virtually on point with respect to this issue,
the Pennsylvania Superior Court held [that] photographs of a child
sex crime victim[,] from the timeframe in which the crimes were
committed[,] were legally irrelevant and should not have been
admitted into evidence. See id. at 1106-11. In Vucich, the
defendant was charged with various crimes arising from his sexual
abuse of a child victim, including rape of a child, involuntary
sexual deviate intercourse with a child, unlawful contact with a
minor, corruption of minors, and indecent assault of a person less
than thirteen. Id. at 1106. Over objection of the defendant, the
trial court admitted two photographs showing the child victim
between the ages of nine and eleven. On appeal, the Superior
Court agreed with the defendant that the victim’s appearance at
the time of the crimes did not tend to demonstrate any material
fact, so the photographs did not meet the threshold relevancy
requirement. Id. at 1107-09. Although the Vucich Court
ultimately determined [that] admission of the photographs had
been harmless error [(which we discuss infra in the instant
appeal)], it also determined that it was error to admit them in the
first instance. Id.
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Based on the Vucich decision, th[e trial c]ourt [in the
instant case] concludes that admission of the [] [P]hotographs of
the child victim … was error, and that the [P]hotographs should
have been excluded as irrelevant. However, as noted above,
there was nothing inflammatory about the [P]hotographs, and the
Commonwealth’s use of them at trial was limited to brief
foundation testimony and publication to the jury. Under the
circumstances of this case, the [trial c]ourt submits that the
resulting prejudice to [Neff], if any, was de minimis, and the error
[was] therefore harmless.
Trial Court Opinion, 1/7/19, at 2-3 (citation to record omitted). The trial
court’s sound analysis is supported by the law and the record.
As in Vucich, we conclude that the Photographs of the victim were
irrelevant and therefore inadmissible, but that the error in their admission was
harmless. “The harmless error doctrine, as adopted in Pennsylvania, reflects
the reality that the accused is entitled to a fair trial, not a perfect trial. …
Harmless error exists[, in relevant part,] if the record demonstrates [that] …
the error did not prejudice the defendant or the prejudice was de minimis ….”
Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014) (citations and
quotation marks omitted). Moreover, “[a]n error may be deemed harmless …
where the properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the verdict.”
Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa. 2007).
Like in Vucich, the Commonwealth in this case briefly showed the jury
the Photographs on only two occasions. Therefore, while the Photographs
were irrelevant, see Vucich, 194 A.3d at 1110-11, their use was limited, and
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they merely depicted the victim’s general appearance at the time of the
assaults. Although the Photographs were inadmissible, we agree with the trial
court that any prejudicial effect was de minimis and would not have affected
the outcome of the trial. See id. Moreover, we conclude that the trial court’s
error was harmless in light of the overwhelming evidence of Neff’s guilt, where
Neff had confessed to the crimes on multiple occasions prior to trial, and the
victim described the assaults, which occurred over many years, in detail. See
Moore, supra. Accordingly, Neff’s first issue fails.
In his second issue, Neff contends that the trial court abused its
discretion in denying his Motion for a mistrial, where Nisely’s prohibited
testimony deprived him of a fair jury trial. See Brief for Appellant at 13-14.
Neff alleges that Nisely’s prohibited testimony violated the Motion in limine,
and the trial court’s curative instruction to the jury on the matter was
insufficient to cure the prejudice he suffered. Id. at 14.
Our standard of review in assessing the denial of a mistrial is as follows:
The trial court is in the best position to assess the effect of an
allegedly prejudicial statement on the jury, and as such, the grant
or denial of a mistrial will not be overturned absent an abuse of
discretion. A mistrial may be granted only where the incident
upon which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial by
preventing the jury from weighing and rendering a true verdict.
Likewise, a mistrial is not necessary where cautionary instructions
are adequate to overcome any possible prejudice.
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Commonwealth v. Johnson, 107 A.3d 52, 53 (Pa. 2014) (citation omitted);
see also Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009)
(emphasizing that a mistrial is an extreme remedy).
Our Supreme Court has explained that “whether the exposure of the
jury to improper evidence can be cured by an instruction depends upon a
consideration of all the circumstances.” Commonwealth v. Richardson,
437 A.2d 1162, 1165 (Pa. 1981). Two considerations are particularly
important in determining potential prejudice to a defendant: (1) the nature
of the reference; and (2) whether the testimony was intentionally elicited by
the prosecutor. Commonwealth v. Satzberg, 516 A.2d 758, 762 (Pa.
Super. 1986).
Here, the record reveals that Nisely’s prohibited testimony was not
intentionally elicited. In fact, it occurred in response to an unrelated question
asked by the prosecutor, which the prosecutor based on a specific remark that
Nisely had made regarding Neff’s conduct in her prior police statement.6 See
N.T., 11/30/17, at 192 (wherein the prosecutor explained to the court, “Judge,
I didn’t illicit [sic] that comment. I asked [Nisely] how she was feeling …. It’s
not what I was expecting to come out of her mouth. [Nisely] had written in
her [police] statement that she felt physically ill.”).
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6 Specifically, the prosecutor questioned Nisely, concerning the feeling that
she had in response to hearing Neff’s confession, “[d]id it make you physically
ill?” N.T., 11/30/17, at 190. Nisely then offered Nisely’s prohibited testimony.
Id. at 191.
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Additionally, the trial court thoroughly and immediately instructed the
jury that Nisely’s prohibited testimony should be disregarded, and that it was
the sole purview of the jury to assess the credibility of witnesses. Id. at 193-
94. Neff is entitled to a fair trial, not a perfect one. Hairston, supra. Under
the circumstances, we conclude that any arguable prejudice to Neff
attributable to Nisely’s prohibited testimony was effectively cured by the
cautionary instruction to the jury. See Johnson, supra. Therefore, the trial
court did not abuse its discretion in denying Neff’s Motion for a mistrial, and
his second issue entitles him to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2019
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