Com. v. Steele, C.

J-S36009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES W. STEELE :
:
Appellant : No. 6 WDA 2020
Appeal from the Judgment of Sentence Entered December 2, 2019
In the Court of Common Pleas of Elk County Criminal Division at No(s):
CP-24-CR-0000139-2016
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 21, 2020
Appellant, Charles W. Steele, appeals from the judgment of sentence
entered on December 2, 2019, following his jury trial convictions, of five
counts each, of involuntary deviate sexual intercourse (IDSI) with a child less
than 13 years of age, aggravated indecent assault, aggravated indecent
assault of a child less than 13 years of age, indecent assault of a child less
than 13 years of age, and corruption of minors.1 We affirm.
We briefly summarize the relevant facts and procedural history of this
case as follows. On October 14, 2005, E.S., 2 an eight-year-old female,
received a medical examination after exhibiting sexualized behavior and
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3123(b), 3125(a)(1), 3125(a)(7), 3126(a)(7), and
6301(a)(1)(i), respectively.
2 To protect her identity, we use the minor victim’s initials.
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expressing concerns to her mother that she was pregnant. N.T., 8/1/2019,
at 81-86. Prior to the examination, E.S. told her mother that Appellant, a
family friend who E.S. called “Ward,” was perpetrating sexual abuse. Id. at
47. Anne Marie Breindel, a physician assistant, conducted the medical exam
and determined that the child’s hymen was broken, showing evidence of
trauma to the vaginal area. Id. at 88-89.
The Commonwealth charged Appellant with, inter alia, the
above-mentioned crimes. Following trial in August 2018, the jury deadlocked
and the trial court declared a mistrial. Prior to retrial, Appellant waived
counsel on May 31, 2019. The trial court granted Appellant’s request to
represent himself pro se at trial, but appointed standby counsel.
A two-day jury trial commenced on August 1, 2019. The Commonwealth
presented, inter alia, the testimony of E.S., her mother, and Ms. Breindel. All
three witnesses testified that E.S. identified Appellant as the perpetrator of
sexual abuse. Appellant represented himself pro se and cross-examined the
Commonwealth’s witnesses, but he did not testify.
Relevant to this appeal, the Commonwealth asked Ms. Breindel whether
E.S. gave “an indication of what was going on with her and who did this to
her[.]” Id. at 91. Appellant objected. Id. When the trial court asked for the
grounds of the objection, Appellant argued, “In the way of the medical aspect
that it is hearsay.” Id. The trial court overruled the objection, stating that
Ms. Breindel was “permitted to formulate an opinion based upon her
observations.” Id. at 91-92. Ms. Breindel then testified that during the exam,
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she “inquired whether or not anyone had ever touched [E.S.] in a way that
made [E.S.] feel uncomfortable, and [E.S.] said yes.” Id. at 92. When Ms.
Breindel asked E.S. who touched her in such a manner, E.S. specifically
identified “Ward” and said he engaged in sexual misconduct with her multiple
times. Id. at 92-93.
At the conclusion of trial, the jury convicted Appellant of the
aforementioned offenses. On December 2, 2019, the trial court sentenced
Appellant to an aggregate term of 20 to 40 years of imprisonment. On
December 3, 2019, Appellant requested the appointment of counsel. The trial
court appointed standby counsel from trial to represent Appellant on appeal.
This timely appeal resulted.3
On appeal, Appellant presents the following issue for our review:
Whether the [t]rial [c]ourt [violated the evidentiary rules against
admitting hearsay] in permitting Anne Marie Breindel, a
physician's assistant, to testify that during a medical exam [E.S.
stated that Appellant] had "touched [E.S.] in a way that made
[E.S.] feel uncomfortable"[?]
Appellant’s Brief at 8.
Appellant claims that the trial court abused its discretion in permitting
Ms. Breindel to testify that E.S. identified him as the perpetrator of sexual
abuse during a medical exam. Appellant’s Brief at 19-23. More specifically,
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3 Appointed counsel filed a timely notice of appeal on December 31, 2019. On
January 3, 2020, the trial court directed Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely on January 23, 2020. On March 5, 2020, the trial court filed
an opinion pursuant to Pa.R.A.P. 1925(a).
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Appellant claims that the statement did not qualify as an exception to hearsay
for medical diagnosis or treatment pursuant to Pa.R.E. 803(4). Id. at 19-20.
Citing our Supreme Court’s decision in Commonwealth v. Smith, 681 A.2d
1288 (Pa. 1996), Appellant contends that “[t]he identi[t]y of a perpetrator is
not pertinent to medical treatment or diagnosis.” Id. at 20. As such,
Appellant contends that the erroneous admission of hearsay evidence entitled
him to a new trial. Id. at 23.
As our Supreme Court held in Smith:
The admission of evidence is committed to the sound discretion of
the trial court. […] Discretion is abused when the course pursued
by the trial court represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where the law
is not applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill will.
* * *
[H]earsay is generally not admissible. This is so because a
hearsay statement lacks guarantees of trustworthiness
fundamental to the Anglo–American system of jurisprudence.
Perhaps such a statement's most telling deficiency is it cannot be
tested by cross-examination. […] Nor is the declarant under oath
when the out of court statement is uttered. [Our Supreme C]ourt
has long recognized the oath requirement as a further assurance
of reliability [and] that to insure a party the guarantees of
trustworthiness resulting from a declarant's presence in court, a
proponent of hearsay evidence must point to a reliable hearsay
exception before such testimony will be admitted. Thus, the
burden of production is on the proponent of the hearsay statement
to convince the court of its admissibility under one of the
exceptions.
Id. at 1290 (Pa. 1996) (internal citations, quotations, and original brackets
omitted).
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Pennsylvania Rule of Evidence 803(4) provides an exception to hearsay
for statements made for medical diagnosis or treatment. See Pa.R.E. 803(4).
The Rule permits a statement that:
(A) is made for — and is reasonably pertinent to — medical
treatment or diagnosis in contemplation of treatment; and
(B) describes medical history, past or present symptoms, pain,
or sensations, or the inception or general character of the
cause or external source thereof, insofar as reasonably
pertinent to treatment, or diagnosis in contemplation of
treatment.
Id.
The Smith Court opined:
The medical treatment exception to the hearsay rule provides that
testimony repeating out-of-court statements which were made for
the purposes of receiving medical treatment are admissible as
substantive evidence. […] The law in Pennsylvania has been that
statements to a doctor were admissible insofar as they were
necessary and proper for diagnosis and treatment of the injury
and referred to symptoms, feelings and conditions.
Smith, 681 A.2d at 1290.
In Smith, a child scalded by hot water presented at the hospital with
burn injuries. When asked by a nurse how the injuries occurred, the child
replied that her father had turned on the hot water and put her into the
bathtub. The Smith Court determined that “the child's identification of her
abuser [wa]s not pertinent to her medical treatment or diagnosis[.]” Id. at
1292. More specifically, our Supreme Court questioned, “What difference
would it have made to the treatment of the burns whether a total stranger
inflicted the burns or a close family relative?” Id. The Smith Court also
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rejected the Commonwealth’s argument that the “identity of the perpetrator
of abuse [wa]s of significance for psychological and emotional treatment of
the victim as well as for the protection of the child from future abuse.” Id.
Ultimately, the Smith Court concluded that, “the trial court abused its
discretion in admitting the nurse's testimony which repeated the child's
statement as to the identity of the alleged abuser pursuant to the medical
treatment exception to the hearsay rule.” Id. at 1293.
In this case, we note initially that the trial court determined Appellant
failed to raise a timely and proper objection to Ms. Breindel’s testimony:
No contemporaneous objection was made to [Ms. Breindel’s]
testimony that E.S. had disclosed who had touched E.S. and made
her uncomfortable and the precursory objection to the medical
aspects of Ms. Breindel's testimony is entirely deficient as a basis
of interpretation that what [Appellant] was really objecting to was
the disclosure of him as perpetrator. Nothing in his objection can
be taken to mean that Ms. Breindel's testimony as to what E.S.
told her in terms of identifying [Appellant] was a hearsay objection
outside the ambit of the medical treatment exception. Nothing
in [Appellant’s] objection connotes an on-going objection nor did
he ever indicate his intent to revive, renew, or resurrect his
objection, which therefore was specifically limited and an
altogether ineffective mechanism on which to now assert error.
Trial Court Opinion, 3/5/2020, at 5.
We disagree. As set forth above, when the Commonwealth asked Ms.
Breindel whether E.S. gave “an indication of what was going on and who did
this to her[,]” Appellant immediately objected on the grounds of hearsay. It
was then incumbent on the Commonwealth, as the proponent of the hearsay
evidence, to point to a reliable hearsay exception before the trial court allowed
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such testimony. See Smith, 681 A.2d at 1290 (the burden of production is
on the proponent of the statement challenged as hearsay to convince the court
of its admissibility under one of the exceptions). Here, the Commonwealth
did not argue that the statement qualified as an exception to hearsay.
Moreover, as Smith makes clear, a statement regarding the perpetrator of
abuse is irrelevant for medical diagnosis and treatment and, therefore, does
not qualify as an exception to hearsay under Pa.R.E. 803(4). For all of the
foregoing reasons, we conclude that the trial court erred by permitting Ms.
Breindel to testify that E.S. identified Appellant when asked, during a medical
examination, if anyone had ever touched her in a way that made her feel
uncomfortable. Such evidence was clearly hearsay, not subject to exception.
However, our Supreme Court has determined that an erroneous
evidentiary ruling may constitute harmless error
if the record demonstrates either: (1) the error did not prejudice
the 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. Hairston, 84 A.3d 657, 671–672 (Pa. 2014), cert.
denied, 135 S. Ct. 164 (2014).
In the alternative to finding that Appellant failed to lodge a timely and
specific objection to Ms. Breindel’s testimony, the trial court also noted that
E.S. testified at length at trial. Trial Court Opinion, 3/5/2020, at 3. The trial
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court opined that “the admission of [] Ms. Breindel's testimony regarding the
identification of [Appellant] was uncontradicted and the overwhelming
evidence [], including the testimony of E.S., would remove any taint of error.”
Id. at 5.
Upon review of the record, we conclude that the trial court’s admission
of E.S.’s statement to Ms. Breindel was harmless error. Initially, we note that
Appellant did not object to the admission of the original office visit notes from
the October 14, 2005 medical exam. N.T., 8/1/2019, at 85. Those notes
were admitted into evidence, without objection, as Commonwealth Exhibit 2.
Id. Ms. Breindel used those notes while testifying to refresh her recollection.
Id. at 91-92. Upon review, the medical notes state that E.S. was asked if
anyone touched her in a way that made her uncomfortable and E.S. named
Appellant. Accordingly, Ms. Breindel’s oral testimony was merely cumulative
of documentary evidence admitted as notes from the October 14, 2005
medical exam.
Furthermore, there was additional overwhelming evidence from E.S. and
her mother presented at trial. Mother testified that E.S. began engaging in
sexual behavior, including rubbing her genitals with a back massager. N.T.,
8/1/2019, at 43. Mother testified that when she asked E.S. who showed her
such behavior, E.S. identified Appellant. Id. at 43-44. Appellant did not
object to this testimony. Mother also testified that when E.S. thought she was
pregnant, E.S. identified Appellant as the perpetrator. Id. at 47. Again,
Appellant did not object to this testimony. Moreover, E.S. testified at trial as
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follows. First, she identified Appellant as her abuser in open court. N.T.,
8/2/2019, at 5. She testified that Appellant digitally penetrated her vagina or
used a vibrator on her genitals “hundreds” of times over the course of
approximately one year.4 Id. at 11-16. E.S. told her mother she “was afraid
[she] was pregnant because [Appellant] had been touching her in [her] private
area.” Id. at 8. E.S. went to the scheduled medical examination because
she believed she was pregnant. Id. Although E.S. did not testify specifically
about her conversation with Ms. Breindel, she testified that she did not share
the details of the abuse until her medical examination on October 14, 2005.
Id. at 27.
Based upon all of this evidence, the record shows that Appellant’s
claimed error is de minimis, the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially similar to the
erroneously admitted evidence, and the properly admitted and uncontradicted
evidence of guilt was so overwhelming that the error could not have
contributed to the verdict. Accordingly, Appellant is not entitled to relief. See
Commonwealth v. Reese, 31 A.3d 708, 727 (Pa. Super. 2011) (en banc)
(stating appellate court may affirm order of trial court on any basis if ultimate
decision is correct).
Judgment of sentence affirmed.
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4 “In the case of sexual offenses, the testimony of the victim alone is sufficient
to convict, and medical evidence is not required if the fact finder believes the
victim.” Commonwealth v. Jette, 818 A.2d 533, 534 (Pa. Super. 2003)
(citation omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2020
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