Com. v. Padikal, T.

J-A09027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS PADIKAL :
:
Appellant : No. 224 EDA 2021
Appeal from the Judgment of Sentence Entered November 13, 2020
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007361-2018
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 14, 2022
Thomas Padikal (“Padikal”) appeals from the judgment of sentence
imposed following his convictions for involuntary deviate sexual intercourse
with a child, aggravated indecent assault of a person less than thirteen years
old, indecent assault of a person less than thirteen years old, and corruption
of minors.1 We affirm.
In 2007, eight-year-old K.C. moved with her mother to a house in
Bensalem with Padikal, her mother’s boyfriend. Padikal was responsible for
the girl’s care in the afternoons between her return from school and the end
of her mother’s workday. On a daily basis for almost three years, Padikal
would ask K.C. if she wanted to go upstairs to “have fun.” N.T., 6/19/21, at
11-13. He would take her to an upstairs bedroom, undress her and himself,
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 3123(b), 3125(a)(7), 3126(a)(7), 6301(a)(1).
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lie on the bed beside her, and penetrate K.C.’s vagina with his fingers and
tongue. He would also force K.C. to masturbate him. K.C. was scared to
reveal Padikal’s abuse. Id. at 7-28, 71.
When K.C. was in the fifth grade, Padikal and her mother broke up. She
and her mother moved first into their own Bensalem apartment and then to
Texas. Ten years later, Padikal began contacting K.C.’s friends on Facebook.
K.C. instructed them not to accept his friend requests. Padikal then contacted
K.C. directly with repeated Facebook messages. In one message, he included
a link to a website he had created whose domain name included her first name.
The website contained thirty-three photos of K.C., some from her time in
Bensalem and some from her time in Texas.2 Many of the photos were
captioned. One read, “This amazing man loved me like I’m a princess. No
wonder I can’t stay away from him ever,” and others were captioned, “No
wonder I fell in love with him,” and “No wonder I fell I love with you, Tom.
You made me come alive. You’re a godsend hero.” K.C. did not respond to
Padikal’s attempts to contact her. See N.T., 6/18/19, at 36-38, 41-44; N.T.,
6/19/19, at 27-37, 80, 94-95.
When K.C. was seventeen years old, she revealed Padikal’s abuse to her
boyfriend and then to her mother, and had a strong emotional reaction that
led her to seek therapy. About one year later, K.C. reported Padikal’s abuse
to Bensalem police, who arranged for Texas police to interview her. Texas
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2 K.C. did not give Padikal any of the photos and had no involvement in the
creation of the website. See N.T., 6/19/21, at 37.
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police forwarded a recording of their interview of K.C. to Bensalem police, who
then undertook a “text takeover” in which they posed as K.C. on Facebook
and engaged in on-line conversations with Padikal. During almost 100
conversations over the course of ten days, Padikal gave the person he believed
to be K.C. his phone number and email address and repeatedly attempted to
call her via Facebook. Padikal wrote in his messages to K.C. that he “used to
love it when you [would] come home from school and . . . get naked in bed,
grab my hand and place it on your naked body. You really enjoyed it.” He
repeatedly gave her his phone number, called her “Princess,” identified himself
as “Dad,” told her that he loved her, and urged her to call him. See N.T.,
6/19/19, at 38-47, 80-81, 99-100, 115-130, 134.
In another exchange, the person writing as K.C. told Padikal, “You
touched my privates. I was just a kid.” Padikal responded, “Well you touched
me first. I thought you were learning – I thought we were learning about each
other. But if you ask that I apologize, I sure will, Princess.” Padikal also wrote
that K.C. herself initiated sexual contact with him: “Like I said, you asked me
to. You even took my hands and did that, remember? I really didn’t want to,
but did it because you took my hand and put it there.” See N.T., 6/19/19, at
132-133.
Bensalem police had K.C. come to Pennsylvania so that they could
record her having a telephone call with Padikal. In that call, Padikal told K.C.
that, “I did not force you to do anything,” and that K.C., who was eight years
old at the time he began abusing her, had initiated sexual contact with him by
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stripping herself, and putting his hands on her body, including between her
legs, and that when she did, he would touch her genitals. See N.T., 6/19/19,
at 171; Commonwealth’s Exhibit C-9 (“C-9”) at 23:44-26:00.3 Padikal told
K.C. that he had been afraid to engage in more intimate sexual conduct with
her and kept his genitals away from hers because he was afraid of
impregnating her. See C-9 at 26:12-26:30. He admitted to placing his fingers
in her vagina and to placing his tongue against her clitoris, which he said gave
her ecstasy. See id. at 26:33-28:21. Padikal gave K.C. the address of the
website he had created with photographs of her as a child. He stated his
willingness to visit her in Texas and to stay with her in a hotel. He also told
her that, “I really, really, really love you, sweetheart.” See N.T., 6/19/19, at
137-40, 170-71; C-9 at 40:00-40:08.
After the phone call, Padikal continued to send messages to K.C.,
including one in which he attached a photo of her as a girl with him standing
by an airplane. He declared his desire to “make out” with her in the cockpit
of a jet and impregnate her at 30,000 feet. See N.T., 6/19/19, 141. He also
wrote, “Love you, Princess. Will you be mine, Baby,” and asked her how many
people she wanted at their wedding reception. Padikal requested a nude photo
of K.C., and told her she was “an expert in the art of seducing a guy.” He
repeatedly contacted her and gave her his home address. See id. at 141-53.
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3The citations to C-9 indicate the times on the audio-recording when Padikal
made the statements referenced.
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New Jersey law enforcement officers, accompanied by Bensalem police,
arrested Padikal at his New Jersey home. During a tape-recorded interview,
Padikal told Bensalem Township Detective David Nieves that he and K.C. had
both initiated inappropriate touching. See N.T., 6/19/19, at 174-75, 186;
N.T., 6/20/19, at 4-5. In the interview, Padikal said that on one occasion,
K.C.’s mother had observed K.C.’s hand on his genitals, and that he had told
her that it was better for K.C. to learn about the human body inside of the
family than outside. See N.T., 6/20/19, at 4-5; Commonwealth’s Exhibit C-
11 (“C-11”) at 20:50-21:20.4 During the playing of the recorded interview at
trial, Padikal objected to Detective Nieves’s statement that Padikal showed no
remorse and was “evil” as prejudicial and not relevant. See id. at 28:45. The
trial court agreed and the jury did not hear any more of the interview. See
N.T., 6/20/19, at 5.
During the search of Padikal’s house following his arrest, police found a
gun registered in his name. See id. at 8. On Padikal’s computer, they found
images of K.C.’s face as a child superimposed on the bodies of naked adult
women. See id. at 11-13. Police also recovered mail in Padikal’s handwriting
that stated:
I think you both know [K.C.] was nine years old, or
thereabouts, when she began to make advances to me by saying,
quote, Can you spend some time with me. Fact is, I really didn’t
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4 The citations to C-11 indicate the times on the audio-recording when the
referenced statements were made.
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want to. I didn’t want to go into her room, but I didn’t go or say
anything. I was surprised when she walked into my room,
completely naked, and sat on my lap with her legs wrapped
around me. She began moving back and forth and kissing me; in
the mouth, too.
I wanted her to stop, but she was under the influence of her
sexual energy. . .. [I] stood up, gently pushing her away, moving
my arms from her tender breasts.
....
I am more than happy to send her a few hundred dollars
every month for a couple of years if she will withdraw these
charges immediately. I promise. About the question you asked
me, Now that you’re almost 21, if I would marry you, I am not
sure. We must discuss this and get some clarity about what it
is. . .. [C]ontact me when you drop the charges and we’ll talk
about it. You must be a beautiful woman now, and I suppose that
is not out of the question. At least then, if [sic] all legal, right?
And I may be able to have you work for one of my corporations.
God bless you [K.C.]. And say hi to [your mother]. Sincerely
yours, Thomas Padikal.
N.T., 6/20/19, at 15-17; Commonwealth’s Exhibit C-14.
The jury convicted Padikal of the charges against him. The trial court
imposed a term of 180 months to 360 months of imprisonment, and lifetime
registration as a sexual offender, for involuntary deviate sexual intercourse
with a child.5 See N.T., 10/15/19, at 7, 47.6 On Padikal’s motion for
reconsideration, the court reduced his sentence to 150 months to 300 months
of imprisonment. See N.T., 11/13/20, at 6-7, 17-18.
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5 Lifetime registration was imposed pursuant to subchapter I, 42 Pa.C.S.A.
§ 9755(b)(2)(i)(A).
6 Padikal received no further penalty for his other convictions.
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Padikal filed a timely notice of appeal, and both he and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Padikal raises the following issues for our review:
I. Whether the Commonwealth’s evidence unduly prejudiced
[Padikal] and impermissibly encroached on his character,
where the lead investigator testified as to his training as a
polygraph examiner with an inability to stop detecting
deception, and the jury heard evidence of the investigator
stating that he can tell when a person is completely
deceptive, and where the Commonwealth entered evidence
of the investigator[’s] opinion of [Padikal] being an evil
individual who has no remorse for his crimes.
II. Whether the Commonwealth’s proffered evidence and
continued argument to the jury regarding [Padikal’s]
possession of a firearm and his deception of the same during
an interrogation with law enforcement, was in contravention
of the Rules governing character evidence and caused
undue prejudice to [Padikal].
Padikal’s Brief at 4.
Padikal’s first issue claims that Detective Nieves offered improper
testimony about his expertise in assessing credibility by presenting himself as
“a human lie detector” as a result of his experience with polygraphs, which
bolstered the detective’s assessment in the recorded interview that Padikal
showed no remorse and was “evil.” Padikal asserts that the detective’s
opinions were impermissible attacks on his character for truthfulness and law-
abidingness.
The admissibility of evidence is in the trial court’s discretion and will not
be reversed absent an abuse of that discretion. See Commonwealth v.
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DeJesus, 880 A.2d 608, 614 (Pa. 2005). An abuse of discretion exists where
the trial court overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will. See Commonwealth v. Norton, 201 A.3d 112, 120 (Pa.
2019).
The trial court initially concluded that Padikal did not timely challenge
Detective Nieves’s testimony about his polygraph training and, further, that
Padikal’s objection and the court’s intervention prevented the detective from
offering improper opinion testimony. See Trial Court Opinion, 7/16/21, at 7-
9.7
Having reviewed the record, we agree with the trial court that Padikal
waived his claim, and the detective did not give improper opinion testimony.
Detective Nieves made a brief reference about attending polygraph school,
and then asserted that he had learned to focus on verbal and nonverbal cues
to assess whether someone is telling the truth or being deceptive. See N.T.,
6/19/19, at 179-80. Padikal did not object to that testimony, and therefore
waived any challenge on appeal to its admission. See Pa.R.A.P. 302(a)
(stating that claims first raised on appeal are waived); see also
Commonwealth v. Benvenisti-Zarom, 229 A.3d 14, 26 (Pa. Super. 2020)
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7 The trial court also found that Padikal had failed to request a cautionary
instruction, and that any error in the detective’s testimony was harmless. See
id.-8-
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(holding that the failure to make a proper objection at trial to the scope of a
witness’s testimony waives the claim that the trial court abused its discretion
by admitting that testimony).8
We further agree with the trial court that Padikal’s objection and the
trial court’s action prevented the detective from giving improper opinion
testimony. After Detective Nieves mentioned his polygraph training, he began
describing his interview of Padikal. Padikal objected and asked for a sidebar
discussion, at which he expressed a concern that the detective would offer an
inadmissible opinion about Padikal’s character for honesty. See N.T.,
6/19/19, 181-82. The trial court told the prosecutor that the detective could
discuss his observations, but could not offer an opinion about whether Padikal
was lying. See id. at 180-84. Following the sidebar, the detective did not
offer his opinion of Padikal’s honesty. See id. at 184-187. The absence of
inadmissible testimony precludes relief without regard for the trial court’s
additional conclusion that any error was harmless. Cf. Commonwealth v.
Spotz, 47 A.3d 63, 115 (Pa. 2012) (declining to review claim based on
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8 Polygraph evidence is inadmissible at trial as evidence of guilt. See
Commonwealth v. Watkins, 750 A.2d 308, 315 (Pa. Super. 2000). Even
when the results of a polygraph test are mentioned at trial, however, the
reference must be explicit to compel the grant of a new trial. See
Commonwealth v. Sneeringer, 668 A.2d 1167, 1174 (Pa. Super. 1995).
We note that here Detective Nieves did not testify that he administered a
polygraph exam to Padikal. Thus, the detective’s general, unobjected-to
reference to polygraph training cannot compel the grant of a new trial for that
additional reason. See Sneeringer, 668 A.2d at 1174.
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testimony not admitted in lower court).
Padikal also asserts that the jury improperly heard Detective Nieves’s
assertions to Padikal in their recorded interview, played on the detective’s
second day of testimony, that Padikal had no remorse and was “evil,” which
he asserts was improper character evidence.9 The trial court found that
Padikal waived his claim of error because he did not request a cautionary
instruction or a mistrial after the court agreed with him that the remark was
inadmissible,10 and that the error was, in any event, harmless. See Trial Court
Opinion, 7/16/21, at 10-12.
We agree with the trial court that Padikal waived this claim. Although
Padikal objected when he heard the detective’s remark during the playing of
the recorded interview, and told the trial court at sidebar that the remark was
“prejudicial and not relevant,” see N.T., 6/20/19, at 5,11 he won the objection
but did not seek a cautionary instruction or request a mistrial. Id. at 5-6.
Thus, he waived his claim. See Commonwealth v. Sandusky, 77 A.3d 663,
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9The remark occurred approximately twenty-eight minutes and forty-five
minutes into the playing of C-11. See N.T. 6/20/19, at 5.
10 Because the objection was resolved at a sidebar discussion, the trial court
did not formally sustain the objection in open court. See N.T., 6/20/19, at 5.
11 Padikal’s relevance objection did not assert that the remark constituted
inadmissible character evidence, arguably waiving that appellate theory of
relief. See Commonwealth v. Rivera, 238 A.3d 482, 499 (Pa. Super. 2020)
(holding that this Court cannot review a legal theory offered in support of a
claim where that theory was not presented to the trial court).
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670 (Pa. Super. 2013) (holding that even where a defendant objects to specific
conduct, his failure to request a specific remedy such as a mistrial or a curative
instruction is sufficient to constitute waiver).
Even were Padikal’s issue preserved, it would fail because any error
caused by the jury hearing the detective’s remark was harmless. An error is
harmless only where:
(1) the error did not prejudice defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely
cumulative of other, untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) 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. Williams, 274 A.3d 722, 735 (Pa. Super. 2022) (citation
omitted and italics supplied).
The evidence of Padikal’s guilt was abundant. The evidence included
K.C.’s testimony, Padikal’s Facebook messages to K.C. admitting to having
involuntary deviate sexual intercourse and other sexual contact with her when
she was under thirteen, the recorded telephone call in which Padikal admitted
that he digitally and orally penetrating K.C. when she was under thirteen,
Padikal’s computer file containing pre-pubescent K.C.’s face superimposed
onto naked women’s bodies, Padikal’s written assertion that K.C. had seduced
him, and Padikal’s handwritten letter offering to pay K.C. to withdraw the
charges against him. That evidence was so overwhelming that the detective’s
fleeting recorded assertion about Padikal’s character cannot have contributed
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to the verdict. See Williams, 274 A.3d at 735. Therefore, on Padikal’s first
issue no relief is due.
In his second issue, Padikal asserts that the evidence of his possession
of a gun was inadmissible because it showed a prior crime or bad act, and that
the prosecutor made improper reference in closing argument to Padikal’s
statements about the gun as evidence of his dishonesty. See Padikal’s Brief
at 17, citing N.T., 6/21/19, 23-24.
The trial court found that Padikal waived his objection to the evidence
of the gun presented at trial, and similarly waived his challenge to the
prosecutor’s closing argument by failing to timely object. See Trial Court
Opinion, 7/16/21, at 13.
We agree. Padikal’s failure to object to the testimony that he owned a
gun waived his claim that the trial court abused its discretion by admitting
that evidence about the gun. See Pa.R.A.P. 302(a); see also Benvenisti-
Zarom, 229 A.3d at 26. Similarly, Padikal raised no objection to the
prosecutor’s reference to his gun possession, either during the prosecutor’s
closing argument or afterward. He thereby waived that claim as well. See
Commonwealth v. Russell, 209 A.3d 419, 429 (Pa. Super. 2019) (citation
omitted) (holding that the waiver rule allows a trial court to correct an error
timely drawn to its attention when it can “quickly and easily prevent the need
for a new trial,” and that the failure to assert a timely objection waives the
claim because the appellate court “should not be required to waste judicial
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resources correcting a problem that the trial court could have easily corrected”
had it been given the opportunity to do so). Because Padikal made no
objection at trial to the remark he now asserts compels the grant of a new
trial, he prevented the trial court from correcting any possible error. Thus,
his claim of prosecutorial misconduct is unreviewable. See Russell, 209 A.3d
at 429.
Even if Padikal’s challenges to the gun references were reviewable, they
would not merit relief. Padikal argues that this was improper character
evidence under Pa.R.E. 404(b). But, Padikal lawfully possessed the gun, and
a person may lawfully possess a firearm for which he has a license. See
District of Columbia v. Heller, 554 U.S. 570, 636 (2008) (holding that a
ban on licensed handgun possession in the home violates the Second
Amendment). Additionally, a prosecutor’s remarks do not constitute
reversible error unless their unavoidable effect would be to prejudice the
jurors, forming in their minds fixed bias and hostility toward the defendant so
that they could not weigh the evidence objectively and render a true verdict.
See Commonwealth v. Sneed, 45 A.3d 1096, 1110 (Pa. 2012).
The trial court found that even if reviewable, Padikal’s challenge to
evidence that he had a gun would be meritless because possession of a gun
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is not a prior bad act, and that Padikal lied to police about the gun12 was
admissible to show his dishonesty with law enforcement. The trial court also
found that any error in the admission of the evidence of the gun or the
prosecutor’s reference to it in closing argument was harmless. See Trial Court
Opinion, 7/16/21, at 13.
Were we to reach the merits of Padikal’s claim, we would find it
meritless, although on somewhat different grounds than those cited by the
trial court.13 Padikal had a license to own a gun. See N.T., 6/20/19, at 8.
Evidence that he had a licensed gun in his home was, therefore, not evidence
of a crime or a bad act. See Heller, 554 U.S. at 636.14
Similarly, even had Padikal preserved a claim of prosecutorial
misconduct, he could not prevail. The trial court found that the prejudice, if
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12Padikal first told the police that he did not have the gun, then said it was
not in the house, that he lost it, or that he gave it back to the person from
whom he bought it. See N.T., 6/20/19, at 5; C-11 at 07:05-10:00.
13See Commonwealth v. Lehman, 275 A.3 513, 520 n. 5 (Pa. Super. 2022)
(holding than an appellate court may affirm a lower court’s decision on any
proper grounds without regard to the ground relied upon by the lower court).
14Evidence of Padikal’s possession was not offered to show his propensity to
commit crime, but to place in context his interview with Bensalem police. At
the beginning of that interview, Padikal complained about the force the New
Jersey law enforcement officers used when they entered his house and
detained him. See C-11 at 06:28-07:05. Detective Nieves explained to
Padikal that police databases showed that he had a license to own a gun and
that under such circumstances, police – in this case, the New Jersey officers
who made initial home entry – exercise greater caution in the interests of
safety. See C-11 at 07:05-10:00.
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any, from the prosecutor’s unobjected-to remark was de minimis.15 We agree
that even had Padikal preserved his claim he could not show that the
prosecutor’s remark so prejudiced the jurors, forming in their minds fixed bias
and hostility toward the defendant, that they could not weigh the evidence
objectively and render a true verdict. See Sneed, 45 A.3d at 1109-10. On
this record, it is clear that the jury convicted Padikal based on compelling,
abundant, and corroborated evidence that he sexually abused a prepubescent
girl in his care for years, and admitted to that abuse in writing and in a
recorded conversation (even offering to pay her to withdraw the charges),
while claiming that she had seduced him into sexual contact with her when
she was a child. For the same reasons, Padikal could not show that the
prosecutor’s reference to his lawful possession of a licensed gun had a
prejudicial effect on the jury’s verdict. See Williams, 274 A.3d at 735. Thus,
no relief is due.
Judgment of sentence affirmed.
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15 In relevant part, the prosecutor stated that Padikal had lied multiple times
in his statement to police. The prosecutor highlighted Padikal’s statements
that he did not have his gun and thought he had sold it back to the person
from whom he bought it. The prosecutor stated, “But what was recovered
from the house during the search? The firearm.” N.T., 6/21/19, at 24, citing
C-11.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2022
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