Com. v. Rodeheaver, T.

J-A12003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY QUINN RODEHEAVER, SR. :
:
Appellant : No. 983 WDA 2021
Appeal from the Judgment of Sentence Entered June 2, 2021
In the Court of Common Pleas of Fayette County
Criminal Division at CP-26-CR-0000405-2019
BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: MAY 20, 2022
Timothy Quinn Rodeheaver, Sr. (Appellant) appeals from the judgment
of sentence imposed after a jury convicted him, with respect to child/victim
(A.), of two counts each of involuntary deviate sexual intercourse with a child
(IDSI-C), aggravated indecent assault - complainant less than 13 years of
age, and indecent assault - person less than 13 years of age; with respect to
two children (A. and M.), the jury found Appellant guilty of two counts of
corruption of minors.1 Upon review, we affirm.
The trial court recounted the underlying facts and procedural history as
follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3123(b), 3125(a)(7), 3126(a)(7), and 6301(a)(1)(ii).
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At trial, the Commonwealth presented the testimony from [M.],
born [in 2005], and [A.], born [in 2007.] [M.] testified [Appellant]
touched her breasts and vaginal area. This had been happening
to her for as long as she could remember. She testified that her
clothes were on when the touching occurred. She testified that
there was never a time when her clothes were off. In December
2019, she and her sister discussed [Appellant] touching them and
they then informed their parents.
[A.] testified that [Appellant] began touching her inappropriately
when she was seven or eight years of age. On two occasions, [A.]
testified that [Appellant] put his mouth on her vaginal area,
touching her with his tongue. Both children previously
participated in forensic interviews and the video of their interviews
was played during the trial.
The Commonwealth also presented the testimony of []
Pennsylvania State Trooper Robert Wilson [Trooper Wilson].
During his testimony, the prosecutor asked [Trooper Wilson] if he
had the opportunity to speak with [Appellant] and [Trooper
Wilson] responded that he did not. The prosecutor then asked
[Trooper Wilson] if he attempted to speak with [Appellant].
[Trooper Wilson] responded to the question by stating “I did. He
referred me to his attorney.” At that time, defense counsel
objected on the basis of [Appellant’s] Fifth Amendment right to
remain silent and his right to be represented by counsel. After
discussion, counsel requested a mistrial and this was denied by
the court. A curative instruction was included in the jury
instructions. [Appellant] presented character witnesses and then
testified himself. There was no questioning of [Appellant] by the
prosecution about his failure to respond to [Trooper Wilson’s]
request for an interview nor was it raised in either counsel’s
closing arguments.
After a jury trial on May 5-6, 2021, [the jury convicted Appellant
of the above crimes]. After the verdict was entered, [Appellant]
was sentenced to six (6) to (12) years’ incarceration. Thereafter,
[Appellant] filed a timely Post Sentence Motion and then an
Amended Post Sentence Motion. The [trial c]ourt denied
[Appellant’s] Post Sentence Motion.
Trial Court Opinion, 10/14/21, at 1-2 (unnumbered) (record citations
omitted).
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Appellant timely appealed, and both Appellant and the trial court have
complied with Pa.R.A.P. 1925. Appellant presents two questions for review:
I. Whether the Commonwealth presented insufficient evidence
of penetration, however slight, to sustain the convictions for
[IDSI-C] and Aggravated Indecent Assault; thus warranting
the entry of the judgment of acquittal?
II. Whether the [trial c]ourt committed an abuse of discretion
in denying [Appellant’s] motion for mistrial based upon the
prosecuting officer’s testimony that [Appellant] did not give
a statement to police when contacted, but referred the
police to his attorney, as same constituted a violation of
[Appellant’s] Fifth Amendment right to remain silent and
Sixth Amendment right to counsel; thus warranting a new
trial?
Appellant’s Brief at 6 (reordered for disposition).
In his first issue, Appellant argues the evidence was insufficient to
support his convictions of IDSI-C and aggravated indecent assault of a child
because the Commonwealth did not prove the penetration element of either
crime. Appellant’s Brief at 16-18. Appellant argues A.’s testimony that on
two occasions, Appellant “put his mouth on me” and his “tongue” touched her
“vagina,” was insufficient to demonstrate “any actual penetration.” Id. at 17;
N.T., 5/5/21, at 35. We disagree.
Pertinently:
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. 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.
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In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations
omitted).
A person is guilty of IDSI-C “when the person engages in deviate sexual
intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.A.
§ 3123(b). Deviate sexual intercourse is “[s]exual intercourse per os or per
anus between human beings[.]” 18 Pa.C.S.A. § 3101.
A person is guilty of aggravated indecent assault of a child when the
person engages “in penetration, however slight, of the genitals or anus of a
complainant with a part of the person’s body for any purpose other than good
faith medical, hygienic or law enforcement procedures[.]” 18 Pa.C.S.A. §
3125(b). This Court has determined “that the term ‘penetration, however
slight’ is not limited to penetration of the vagina; entrance in the labia is
sufficient.” Commonwealth v. Hawkins, 614 A.2d 1198, 1200 n.1 (Pa.
Super. 1992) (citations omitted).
Penetration may be proven by circumstantial evidence. See
Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008). Further,
“the uncorroborated testimony of the complaining witness is sufficient to
convict a defendant of sexual offenses.” Commonwealth v. Bishop, 742
A.2d 178, 189 (Pa. Super. 1999); see also Commonwealth v. Trimble, 615
A.2d 48, 50 (Pa. 1992) (testimony of child victim alone may support conviction
for sex offenses). Also, the Commonwealth is not required to present forensic
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evidence of penetration. See Commonwealth v. Gibson, 951 A.2d 1110,
1140 (Pa. 2008) (no constitutional requirement for police to conduct forensic
analysis of evidence).
Here, A. testified in response to the Commonwealth’s questions as
follows:
[Commonwealth]: Okay. [A.], you testified about [Appellant]
touching you over the clothes, was there ever a time that he would
touch you without the clothes on?
[A.]: Once, like, twice.
[Commonwealth]: What would he do during those two instances?
[A.]: Put his mouth on me.
[Commonwealth]: What part of his mouth would touch what part
of your body?
[A.]: My vagina.
[Commonwealth]: And can you explain in a little more detail how
that happened?
[A.]: It happened.
[Commonwealth]: Okay. Did he – what part of his mouth?
[A.]: Tongue.
[Commonwealth]: And that was under your clothes?
[A.]: Yes.
N.T., 5/5/21, at 35.
The above testimony, if credited by the jury, was sufficient to prove
penetration. See Commonwealth v. Ortiz, 457 A.2d 559, 561 (Pa. Super.
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1983) (“entrance in the labia is sufficient” to constitute penetration). As the
evidence was sufficient for the jury to convict Appellant of IDSI-C and
aggravated indecent assault, his first issue lacks merit.
In his second issue, Appellant claims the trial court erred in denying his
motion for a mistrial after Trooper Wilson testified Appellant “referred the
police to his attorney when he attempted to speak with [him].” Appellant’s
Brief at 12. Appellant argues:
By allowing the trial to continue, the jury was free to speculate or
infer guilt even with the cautionary instruction given as to why
[Appellant] would not at a minimum categorically and immediately
deny the horrible accusations against him if he was in fact not
guilty and as to why a not guilty person would already have
retained counsel.
Id. at 15.
We review the denial of a motion for mistrial for an abuse of discretion.
Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011). We have
explained:
In criminal trials, declaration of a mistrial serves to eliminate the
negative effect wrought upon a defendant when prejudicial
elements are injected into the case or otherwise discovered at
trial. A trial court may grant a mistrial 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.
It is also settled that a mistrial is not necessary where
cautionary instructions are adequate to overcome any
potential prejudice.
Commonwealth v. Gilliam, 249 A.3d 257, 274 (Pa. Super. 2021) (emphasis
added, citations omitted), appeal denied, 267 A.3d 1213 (Pa. 2021). Courts
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“must consider all surrounding circumstances before finding that curative
instructions were insufficient and the extreme remedy of a mistrial is
required.” Commonwealth v. Manley, 985 A.2d 256, 266 (Pa. Super.
2009) (citation omitted).
This Court recently summarized case law pertaining to testimony
referencing a defendant’s silence. We stated:
In Commonwealth v. Adams, 628 Pa. 600, 104 A.3d 511(2014), our Supreme Court found harmless error where the
prosecutor elicited testimony that referenced the defendant’s
post-arrest silence because the reference was “contextual and
brief and did not highlight [d]efendant’s silence as evidence of
guilt,” where the Court found “it was simply utilized to recount the
sequence of the [Commonwealth’s] investigation, in particular,
how the DNA sample was obtained from [d]efendant.” Id. at 518.
See also Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d
329, 337 (2005) (where defense counsel first created inference
that Commonwealth’s investigative efforts were minimal or one-
sided, and where trooper testified both that defendant declined
police interview and that defense counsel advised trooper that
defendant denied allegations and would invoke right to remain
silent, reference to silence was “circumspect,” “limited to its
context,” and “not used in any fashion likely to burden
[d]efendant’s Fifth Amendment right” or create an inference of
admission of guilt since prosecution made no further reference to
defendant’s silence, thus, defendant did not suffer prejudice);
Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 478
(1998) (“Even an explicit reference to silence is not reversible
error where it occurs in a context not likely to suggest to the jury
that silence is the equivalent of a tacit admission of guilt.”).
Commonwealth v. Rivera, 255 A.3d 497, 507 (Pa. Super. 2021)
Consistent with the foregoing, the record supports the trial court’s
determination that Trooper Wilson’s testimony “resulted in de minimis, if any,
prejudice.” Rivera, 255 A.3d at 507 (citations omitted); N.T. 5/5/21 at 51.
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Trooper Wilson’s testimony was “contextual and brief,” occurring during
questioning about how Trooper Wilson conducted his investigation and who
he interviewed. See Adams, 104 A.3d at 518; DiNicola, 866 A.2d at 337;
see also N.T., 5/5/21, at 49-51. The Commonwealth made no further
mention of Appellant’s pre-arrest silence or his invocation of right to counsel.
See Adams, 104 A.3d at 515; Rivera, 255 A.3d at 508.
Finally, the trial court gave a curative instruction. The court advised the
jury that Appellant,
always has an absolute right in any trial to remain silent.
[Defendants] are not required to testify, they’re not required to
present witnesses. I am telling you that you may not draw any
inference of guilt from the fact that [Appellant] did not offer a
statement to the investigating officer when he was requested to
do so. He has an absolute right at that point and throughout to
remain silent and you cannot draw any inference of guilt from the
fact that he did not talk to the trooper on the day the officer
questioned him.
N.T., 5/6/21, at 63. We presume a jury follows a court’s instruction. See
Commonwealth v. Speight, 854 A.2d 450, 458 (Pa. 2004). Appellant’s
second issue does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/20/2022
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