Com. v. J.G.M.

J-S93041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
J.G.M.,
Appellant No. 1822 EDA 2016
Appeal from the Judgment of Sentence January 19, 2016
in the Court of Common Pleas of Bucks County
Criminal Division at No.: CP-09-CR-0007636-2014
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 31, 2017
Appellant, J.G.M., appeals from the judgment of sentence imposed on
January 19, 2016, following his jury conviction of one count each of
involuntary deviate sexual intercourse with a child (IDSI), aggravated
indecent assault, indecent assault, and corruption of minors.1 On appeal,
Appellant challenges the weight of the evidence, the denial of his motion for
a mistrial, and certain of the trial court’s evidentiary rulings. For the reasons
discussed below, we affirm the judgment of sentence.
____________________________________________
*
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),
respectively.
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We take the underlying facts and procedural history in this matter
from the trial court’s August 16, 2016 opinion and our independent review of
the certified record.
This case involves three instances of Appellant sexually
abusing his 12-year-old stepdaughter, [j]uvenile O.B.
(hereinafter “the victim”). During April and May of 2014, the
victim lived with Appellant, her mother, and her younger half-
brother . . . . The victim testified that she engaged in few
extracurricular activities at school, and she enjoyed playing with
various electronic devices, including her cellphone, laptop
computer, and video game systems. Appellant was frequently
responsible for taking care of the victim and her half-brother
while the victim’s mother worked the night shift as a nurse.
The victim testified that Appellant sexually abused her
three separate times in April and May of 2014. Appellant
communicated to the victim that the sexual contact was a
punishment for the unpermitted use of her electronic devices.
The first incident occurred in April of 2014. The victim’s
mother was away working the night shift, and the victim was
under the supervision of Appellant. The victim testified that
Appellant reprimanded her for impermissibly using her electronic
devices. As a punishment for using the electronics, Appellant
forced the victim to strip off her clothes and masturbate in front
of him. In addition to watching the victim strip and masturbate,
the victim testified that Appellant also manipulated the victim’s
hand on her vagina and used his own hand to touch her vagina.
The abuse took place in the upstairs master bedroom and lasted
approximately [thirty] to [forty-five] minutes. The victim
testified that, after the incident, Appellant told her “don’t tell
anybody” and “don’t tell mom.”
The second incident occurred on Mother’s Day, May 11,
2014. During the day, there was a family gathering at the victim
and Appellant’s residence. The victim testified that, while the
rest of the family was outside on the patio and she was sitting in
the living room watching television, Appellant reprimanded her
for watching inappropriate cartoons. As punishment, Appellant
told her that she could either “give him a blowjob later that night
or [she would] get all [her] stuff taken away.” That night, after
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the victim’s mother went to sleep, Appellant summoned the
victim to the downstairs guest bedroom, where Appellant
sometimes slept because of his sleep apnea. Once inside the
guest bedroom, the victim was again forced to strip out of her
clothes. This time, however, Appellant took off his clothes as
well. Appellant forced the victim to manipulate his penis with
her hand and to perform oral sex upon him to the point of
ejaculation. In addition, Appellant bit the victim’s nipples and
touched her vagina. The victim testified that she was ordered to
clean up the ejaculate after he ejaculated. She got paper towels
from the bathroom and wiped the ejaculate from her hand and
from Appellant’s penis. In addition, she spit some ejaculate into
a paper towel. She then threw the paper towels into the trash
can in the guest bedroom.
The third incident occurred in late May of 2014. The
victim’s mother was again away working the night shift at the
hospital. The victim testified that Appellant called her into the
family room and reprimanded her for the use of her electronic
devices. She was again offered the choice of giving Appellant a
“blowjob” or having all of her “stuff” taken away. Appellant
called the victim to the upstairs master bedroom that evening.
The victim was forced to strip out of her clothes and to perform
oral sex on Appellant’s penis. In addition, Appellant rubbed his
penis against the victim’s vagina, without penetration, and
performed oral sex on the victim’s vagina. The victim again
cleaned up the ejaculate with a paper towel and threw out the
towel. Appellant told her that he would do “awful things” to her
if she told her mother, her friends, or anyone else about what he
did to her.
In addition to the three instances of abuse, the victim
testified that Appellant would show her pornography on both his
iPad and her laptop computer. In addition, the victim, upon
request from Appellant, showed Appellant pornographic images
of people having sex on her laptop computer.
Following these instances of sexual abuse, the victim
became “horrified of [Appellant].” She “felt awful” about what
Appellant made her do and was unable to tell her mother what
was happening.
A few days after the third incident, the victim told her
friend, [j]uvenile J.A., about Appellant sexually abusing her.
Afterward, the friend’s mother informed Carol Quinlan, a social
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worker . . . . about the abuse. On May 27, 2014, Quinlan spoke
with the victim. She tearfully advised Quinlan that Appellant
forced her to perform oral sex and other sexual acts as
punishment for her impermissible use of electronic devices.
Following the meeting, Quinlan called Childline; Bucks County
Children and Youth and the Upper Southhampton Police then
became involved in the case.
Later that day, the Bucks County Child Advocacy Center
held a forensic interview with the victim. Jodi Kaplan, a child
forensic interview specialist, conducted the interview, which was
recorded. Kaplan testified that the interview format was non-
leading in nature and based on nationally recognized methods of
forensically interviewing children. At the interview, the victim
again revealed that Appellant sexually abused her. During trial,
the jury watched the recorded interview.
Following the forensic interview, the victim testified that
her mother constantly pressured her to recant her statements.
The victim’s mother told her “a couple times a day” that she
“ruined everything” and that her family “might lose the house.”
These statements made the victim feel “really upset and guilty”
and she eventually recanted her original story. The victim’s
mother then notified Children and Youth of the recantation and
drove the victim to the police station to recant. The victim
testified that she recanted to “just make everything go away”
and so her mother “wouldn’t yell at [her] every day.”
Shortly after the recantation, Appellant moved back into
the home, which was in violation of a safety plan established by
Children and Youth. When the police learned that Appellant had
moved back into the home in violation of the safety plan, the
victim was forced to move out of the house and live with her
maternal grandparents.
In October of 2014, the victim met with Carol Quinlan and
Officer Jessica Bloomingdale of the Warrington Township Police
Department. During that meeting, the victim broke down and
confirmed that her original statement was the truth. She
admitted that her mother “made her lie about the incidents.”
On May 30, 2014, police seized paper towels from the
trash can in the guest bedroom in Appellant’s home pursuant to
a valid search warrant. Police also seized Appellant’s iPad but
found no pornography. In addition to the paper towels, the
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seized contents of the trash can included the following: a
diagnostic report for a printer, dated April 2, 2014; a back page
of a victim booklet from the Child Advocacy Center; discharge
instructions from Abington Hospital in the name of the victim’s
mother, dated January 1, 2014; a printed online newspaper
article, dated January 3, 2014; and a printed recipe for chicken,
dated January 28, 2014. Despite the presence of documents
spanning months, the victim’s mother testified that she emptied
the can on a weekly basis.
The paper towels seized from the trash can in the guest
room were sent to Bode Technologies, a forensic sciences
laboratory, for DNA analysis. Cassidy Torgrimson, a forensic
biology expert, testified that two of the paper towels tested
positive for spermatozoa. Testing of one of the towels was
indicative of saliva; however Bode Technologies did not have a
confirmatory test for saliva. Vanessa Covert, a DNA analysis
expert, testified that she tested the spermatozoa from the towels
and that it matched Appellant’s DNA profile. She also testified
that the probability of selecting an unrelated individual with
Appellant’s DNA profile is one in [one point eight] quintillion in
the U.S. Caucasian population, one in [one hundred] quintillion
in the U.S. African-American population, and one in [eighteen]
quintillion in the U.S. Hispanic population.
At trial, Appellant offered the expert testimony of Arthur
Young, a forensic biology specialist at Guardian Forensic
Sciences. In his testimony, Young relied on the report provided
by the practitioners at Bode Technologies. Young stated that his
lab offered a confirmatory test for saliva; however, Appellant did
not have Young retest the evidence.
During trial, the victim’s mother testified on behalf of
Appellant; she testified that she did not believe the victim.
Appellant testified on his own behalf and denied the allegations.
(Trial Court Opinion, 8/16/16, at 1-6) (record citations omitted).
The police arrested Appellant on December 18, 2014. On August 10,
2015, the Commonwealth filed a motion in limine to preclude Appellant from
introducing evidence about the victim’s mental health history and history of
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viewing on-line pornography. A hearing on the motion took place on August
18, and September 21, 2015. At the hearing,
[t]he Commonwealth argued that the victim’s pornographic
viewing history was protected by Rape Shield [Law, 18 Pa.C.S.A.
§ 3104(a)] and, in the alternative, not relevant. Appellant
argued that the victim’s pornographic viewing history went to
motive, knowledge, and credibility. Appellant also sought to
admit evidence of the victim’s mental illness, statements made
during family therapy sessions, and a fictitious story the victim
wrote about a girl with a similar mental illness who was talked
about as a liar.[2] The Commonwealth contended that this
evidence was not relevant.
At trial, [the] court precluded testimony regarding the
victim’s mental health medication or hospitalization. Statements
made in family therapy sessions, as the well as the victim’s
fictitious story, were also precluded. The fact that the victim has
a mental health diagnosis was admitted.
[The trial court] concluded that viewing pornography was
not covered by Rape Shield. However, [the] court noted before
trial the lack of probative value of the specific content of the
victim’s pornographic viewing history. Before reaching this
conclusion, [the trial court] held a pretrial hearing and
thoroughly went over the pornographic websites and content
offered by Appellant. The evidence offered by Appellant did not
establish that the victim viewed specific images or videos.
Appellant only offered pornographic websites that appeared on
the victim’s electronic devices. The websites currently featured
images and videos of naked bodies and people engaging in
sexual activity. Furthermore, no witness testified to the victim
actually visiting the websites. Appellant’s own expert explained
that “we were not able to retrieve from the computer images
that . . . the user saw.” Thus, no foundation could be laid to
establish what the victim actually viewed. At no point in the
case did either side contend that the victim was ignorant about
pornography.
____________________________________________
2
This Court has reviewed the record of the hearing and is unable to locate
any discussions of record regarding the story.
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At trial, [the court] reiterated that the victim’s
pornography viewing history lacks probative value and found
that specific pornographic content viewed by the victim was not
relevant. The fact that the victim looked at pornography on her
own time did come in as evidence.
At trial, Appellant testified and was asked by the
Commonwealth if he ever contacted the investigating detective
to advise him he was not guilty of the charges. Appellant
objected to the question, and [the trial] court sustained the
objection. [The court] immediately instructed the jury to
disregard the question and promptly offered a curative
instruction to the jury. Appellant moved for a mistrial, and the
motion was denied. Prior to offering final instructions to the
jury, [the trial] court asked Appellant’s attorney if he would like
an additional curative instruction about a defendant’s right to
remain silent. Appellant’s attorney declined [the court’s] offer
and made a “strategic decision” to not “highlight it.”
(Id. at 6-8) (record citations omitted).
On October 23, 2015, the jury found Appellant guilty of the above-
cited offenses. The record is somewhat less than clear whether Appellant
filed either a post-trial or post-sentence motion, and, if so, what was raised
in any such motion. At sentencing, the trial court referenced a post-trial
motion filed by Appellant. (See N.T. Sentencing, 1/19/16, at 3). However,
no motion is listed in the docket or contained in the certified record. 3 The
trial court expressed confusion about whether the motion was to dismiss or
for judgment of acquittal, and ultimately chose to treat it as both. (See id.
____________________________________________
3
This Court made an unsuccessful inquiry to the trial court in an attempt to
obtain the motion.
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at 3-5). The trial court specifically stated on the record that the motions
concerned the sufficiency of the evidence. (See id. at 4-5). It
immediately denied the motion to dismiss but ordered briefing on the motion
for judgment of acquittal. (See id. at 5).
The docket does not demonstrate that Appellant ever filed his previous
motion for a judgment of acquittal, a post-sentence motion challenging the
weight of the evidence, or the memorandum of law ordered by the trial
court.4 On April 12, 2016, the Commonwealth filed a memorandum of law in
response to Appellant’s motion. That memorandum did not address the
sufficiency of the evidence but rather addressed the weight of the evidence.
(See Commonwealth’s Memorandum of Law, 4/12/16, at 7-11). On June
13, 2016, the trial court issued an order denying Appellant’s post-sentence
motion. The order does not address whether the motion concerned the
weight or the sufficiency of the evidence. (See Order, 6/13/16, at
unnumbered page 1). On the docket, there is a notation listed under the
entry, “[o]rder [d]enying [p]ost-[s]entence [m]otion”, which states
“[m]otion filed on 1/19/16” (the date of sentencing). (See Docket, 6/13/16,
at 10). However, as noted above, there is no separate listing of a motion
being filed on that date and there is no such motion contained in the
certified record.
____________________________________________
4
Again, we note that we attempted to obtain the relevant documents from
the trial court but it was unable to locate them.
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On June 15, 2016, Appellant filed a timely notice of appeal. On June
20, 2016, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a
timely Rule 1925(b) statement on July 6, 2016. See id. On August 16,
2016, the trial court issued an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
I. [Was] the verdict against the clear weight of the evidence
where: (1) the [victim] gave multiple conflicting accounts
of the abuse; (2) the [victim’s] claim that Appellant
showed her pornography on his iPad was refuted by a
forensic analysis of the device; and (3) DNA analysis of the
contents of a trash can in the bedroom where the alleged
assaults took place discredited the [victim’s] accounts of
the assaults?
II. Did the trial court err in failing to grant Appellant’s request
for a mistrial where the Commonwealth impermissibly
used Appellant’s silence to imply his guilt in violation of his
right against self-incrimination?
III. Did the trial court err in excluding testimony that the
[victim] regularly viewed hard-core pornography where
she had previously denied visiting pornographic websites
and where Appellant’s proffered evidence would have
directly impeached the [victim’s] credibility?
IV. Did the trial court err in preventing Appellant from
introducing a story the [victim] had written into evidence
where the main character of the story shared many
characteristics with the [victim] and the story constituted
impeachment evidence?
(Appellant’s Brief, at 5) (unnecessary capitalization omitted).
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In his first claim, Appellant challenges the weight of the evidence.
(See id. at 12). Prior to addressing the merits of Appellant’s claim, we must
decide if it is properly before us.
We have long held that this Court cannot consider, in the first
instance, a claim that the verdict is against the weight of the evidence. See
Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Here,
as discussed above, there is no written motion challenging the weight of the
evidence. While Appellant did make oral motions at sentencing, those were
a motion to dismiss and a motion for judgment of acquittal. (See N.T.
Sentencing, 1/19/16, at 3-5). The proper vehicle for challenging the weight
of the evidence is a motion for a new trial, not a motion to dismiss or a
motion for judgment of acquittal. See Pa.R.Crim.P. 607 and 608; see also
Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014), appeal
denied, 95 A.3d 276 (Pa. 2014). Moreover, Appellant did not disagree at
sentencing with the trial court’s characterization that his motions were a
challenge to the sufficiency of the evidence. (See N.T. Sentencing, 1/19/16,
at 4-5). Because of this, the Commonwealth argues that we should find
Appellant’s claim waived. (Commonwealth’s Brief, at 18-20).
While we are displeased by Appellant’s failure to properly file his
written post-trial and post-sentence motions, it is evident that he served
something on the trial court and the Commonwealth that challenged the
weight of the evidence, because the Commonwealth addressed this issue in
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its memorandum of law. (See Commonwealth’s Memorandum of Law,
4/12/16, at 7-11). Moreover, in its 1925(a) opinion, the trial court did not
discuss waiver and rather addressed Appellant’s claim on the merits. (See
Trial Ct. Op., at 9-11). Because of this, despite Appellant’s failure to file his
motion properly, we will address the merits of his claim.
Our scope and standard of review of a weight of the evidence claim is
as follows:
The finder of fact is the exclusive judge of the weight of
the evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment
for that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when the figure of Justice totters on her
pedestal, or when the jury’s verdict, at the time of its rendition,
causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the
judicial conscience.
Furthermore, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and internal quotation marks omitted). “Thus, the trial
court’s denial of a motion for a new trial based on a weight of the evidence
claim is the least assailable of its rulings.” Commonwealth v. Diggs, 949
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A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation
omitted).
In its Rule 1925(a) opinion, the trial court explained its decision
thusly:
Here, we find that the weight of the evidence clearly
supports the jury’s verdict. The victim testified in court and
stated in the forensic interview that Appellant sexually abused
her three separate times. The victim was consistent in her
claims of Appellant’s abuse; mere conflicts in some details of
that abuse would not permit granting a new trial. The jury heard
from both the victim and Appellant and made its own credibility
determinations by finding Appellant guilty of all charges.
Further, DNA evidence corroborated the victim’s
testimony. The victim testified that paper towels containing
Appellant’s sperm were thrown into the trash can in the guest
bedroom following the second incident of abuse. DNA analysis of
two paper towels confirmed a match with Appellant’s DNA
profile. Also, one of the towels was indicative of saliva. The
DNA evidence confirms the victim’s claim that, after the second
incident of abuse, she was forced to clean up Appellant’s
ejaculate and throw it into the trash can[,] which contained
materials dated as far back as January of 2014.
Appellant wrongfully relies on [forensic biology expert]
Arthur Young’s testimony to justify granting a new trial. The fact
that another lab offers confirmatory testing of saliva is not
sufficient evidence to undermine the credibility of the victim and
her corroborated testimony.
Appellant also wrongfully relies on the fact that Appellant’s
iPad did not contain evidence of pornography. Appellant would
have us rely on the incontrovertible physical facts rule to grant a
new trial because of the lack of pornography on Appellant’s iPad
and Young’s testimony. The rule states that “where the
testimony of a witness is contradicted by incontrovertible
physical facts, the testimony of such witness cannot be
accepted, if being either mistaken or false, and a verdict based
on it will not be sustained.” Lamp v. Pa. R.R. Co., 158 A. 269,
271 (Pa. 1931) (citations omitted). However, the rule can only
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be applied where the facts are positive, clear, indisputable, and
certain. Commonwealth v. Newman, 470 A.2d 976, 979 (Pa.
Super. 1984) (citations omitted).
The rule does not apply here because the lack of
pornography on Appellant’s iPad and Young’s testimony that his
laboratory offers confirmatory saliva testing are not “positive,
clear, indisputable, and certain” facts that refute the victim’s
testimony or the DNA evidence. If anything, the victim’s
testimony is supported by the incontrovertible physical facts of
her knowledge of the location of the paper towels and the
corroborating DNA evidence. Additionally, Detective Schirmer of
Upper Southampton Township Police testified that individuals can
clear their internet history at the touch of a button.
We find here that the weight of the evidence supports the
jury’s verdict. As such, Appellant’s argument fails.
(Trial Ct. Op., at 10-11).
We agree with the trial court’s able assessment. Here, the jury chose
to believe the victim and not Appellant. “[I]t is for the fact-finder to make
credibility determinations, and the finder of fact may believe all, part, or
none of a witness’s testimony.” Commonwealth v. Lee, 956 A.2d 1024,
1029 (Pa. Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation
omitted). This Court cannot substitute our judgment for that of the trier of
fact. See Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert.
denied, 134 S. Ct. 1792 (2014). This issue does not merit relief.
In his second claim, Appellant contends that the trial court erred in
denying his motion for a mistrial. (See Appellant’s Brief, at 15). We
disagree.
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The following standards govern our review of the denial of a motion for
mistrial:
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. By nullifying the tainted
process of the former trial and allowing a new trial to
convene, declaration of a mistrial serves not only the
defendant’s interest but, equally important, the public’s
interest in fair trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion to
grant a mistrial whenever the alleged prejudicial event
may reasonably be said to deprive the defendant of a fair
and impartial trial. In making its determination, the court
must discern whether misconduct or prejudicial error
actually occurred, and if so, . . . assess the degree of any
resulting prejudice. Our review of the resulting order is
constrained to determining whether the court abused its
discretion. Judicial discretion requires action in conformity
with [the] law on facts and circumstances before the trial
court after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue for
decision, it misapplies the law or exercises its discretion in
a manner lacking reason.
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal
denied, 145 A.3d 724 (Pa. 2016) (citation omitted). “A mistrial is an
extreme remedy that is required only where the challenged event deprived
the accused of a fair and impartial trial.” Commonwealth v. Smith, 131
A.3d 467, 475 (Pa. 2015), cert. denied, 137 S. Ct. 46 (2015) (citation
omitted). “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.”
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Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008), appeal
denied, 966 A.2d 571 (Pa. 2009) (citation omitted).
Here, the following occurred at trial during the cross-examination of
Appellant:
[The Commonwealth]: . . . at no point in time did you ever
contact Detective Schirmer to tell him that you were not guilty of
these charges, correct?
[Defense Counsel]: Objection, Your Honor. Sidebar.
[The Trial Court]: Sustained. The jury will disregard the
question.
[Defense Counsel]: Am I allowed to make a motion?
[The Trial Court]: You may.
(N.T. Trial, 10/23/15, at 296-97). During, a sidebar discussion, the
following occurred:
[The Commonwealth]: My understanding is that I can make that
argument.
[Defense Counsel]: I move for a mistrial.
[The Commonwealth]: I can make that argument.
[The Trial Court]: You can make what argument?
[The Commonwealth]: I can make the argument that he had
the opportunity to speak with him at any time and he chose not
to. He’s claiming his innocence. I can make that argument.
[Defense Counsel]: I submit that it’s in violation. He’s got a
lawyer so now he’s hiding something. That’s what [the
Commonwealth’s] saying.
[The Commonwealth]: I’m not saying that. I’m saying he had
the opportunity to speak and maintain—he’s maintaining his
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innocence. He’s saying he’s not guilty of these charges. Well,
he had the opportunity at every turn to speak and he chose not
to. And I think I can argue that. He’s brought it up, he’s the
one that got up on the stand and said I’m not guilty. I knew
what I was being charged with.
* * *
[The Trial Court]: . . . But just the fact that he’s innocent does
not mean that you can now go through some—ask him
questions.
Now, if he was there and he said it, if Detective Schirmer
is at the house and he didn’t speak to him, then that’s different.
But I think the way [the Commonwealth’s] question is couched
suggests he has some sort of affirmative obligation to come
forward and he has none.
[The Commonwealth]: Then tell me exactly how you want me to
phrase it.
[The Trial Court]: I don’t want you doing it.
[Defense Counsel]: My position is the cat is out of the bag,
she’s already polluted the jury with that.
[The Trial Court]: Well, your motion is denied. Your motion is
denied.
[Defense Counsel]: Okay.
[The Trial Court]: Is there anything else you want to say to the
jury? I’ve already said sustain the objection. I’ve already
commented on it immediately. Is there anything else you want
me to do?
[Defense Counsel]: Well, you could admonish the prosecutor
but that’s not going to happen either.
[The Trial Court]: I thought it was clear I said no, you can’t do
that.
* * *
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[The Trial Court]: . . . so is there any other instruction you want
me to give the jury?
If you want me to tell them about the fact that a defendant
has no obligation, and that at that point he had counsel, and if
the authorities wanted to talk to him they should have gone
through is counsel?
[Defense Counsel]: Yes. You denied my motion, so yes, I would
request to tell them that the police are not permitted to speak to
him following representation by counsel.
(Id. at 297-98, 300-02, 304-05). The trial court then instructed the jury as
follows:
Referring to the exchange that happened before we broke,
at the time of [Appellant’s] preliminary hearing he was
represented by counsel, and under our system of justice, a
defendant — a detective cannot speak directly to a defendant
unless he has the permission of the defendant’s counsel. Once
he has representation he has to speak through counsel.
Is that acceptable?
[Defense Counsel]: Thank you, Your Honor.
(Id. 307). Further, prior to charging the jury, the following occurred:
[The Trial Court]: . . . The only other question I have, and it’s
entirely up to you, I have sustained your objection about the
question about coming forward—your coming forward and
affirmatively speaking. I could charge the jury if you wanted, it
is up to—that it’s up to the defendant in every criminal trial
whether or not to testify, and a defendant has an absolute right
to remain silent after they’re arrested. If you want me to do
that, I will say that. Or I will not.
[Defense Counsel]: I think you covered it in your instruction.
[The Trial Court]: All right. So you don’t want me to highlight
it?
[Defense Counsel]: No.
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[The Trial Court]: In other words, this is a strategic decision on
your part not to highlight it?
[Defense Counsel]: Yes, Your Honor.
(Id. at 351).
“[A] mistrial is not necessary where the [trial court’s] cautionary
instructions are adequate to overcome any possible prejudice.”
Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007), cert. denied,
552 U.S. 1316 (2008) (citation omitted). Further, “[w]hen the trial court
provides cautionary instructions to the jury in the event the defense raises a
motion for a mistrial, [t]he law presumes that the jury will follow the
instructions of the court.” Parker, supra at 319 (citation and internal
quotation marks omitted).
The reference in this matter was fleeting. The trial court sustained the
objection before Appellant could answer the question and immediately
following the testimony, the trial court provided an adequate cautionary
instruction to the jury. The trial court asked Appellant if he wanted an
additional instruction during the jury charge, and Appellant refused.
Further, Appellant does not point to anything in the record that shows that
the jury did not follow the cautionary instruction. Given this, Appellant has
not shown that he was prejudiced by a fleeting reference to his post-arrest
silence. Accordingly, the trial court did not misapply the law or abuse its
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discretion in denying Appellant’s motion for a mistrial. See Jaynes, supra
at 615.
In his final two claims, Appellant challenges the trial court’s refusal to
admit the details of the pornographic websites allegedly visited by the victim
and its refusal to admit a fictional piece written by the victim because he
argues the evidence was relevant. (See Appellant’s Brief, at 23 and 28).
We disagree.
Our standard of review is settled.
The admissibility of evidence is at the discretion of the trial
court and only a showing of an abuse of that discretion, and
resulting prejudice, constitutes reversible error.
The term discretion imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion must
be exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary actions.
Discretion is abused when the course pursued 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.
Where the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge bears a
heavy burden. . . . [I]t is not sufficient to persuade the appellate
court that it might have reached a different conclusion if, in the
first place, charged with the duty imposed on the court below; it
is necessary to go further and show an abuse of the
discretionary power. . . . We emphasize that an abuse of
discretion may not be found merely because the appellate court
might have reached a different conclusion, but requires a
showing of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support as to be clearly
erroneous.
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To constitute reversible error, an evidentiary ruling must
not only be erroneous, but also harmful or prejudicial to the
complaining party.
Commonwealth v. Williams, 91 A.3d 240, 248-49 (Pa. Super. 2014) (en
banc) (quotation marks, some indentations, and citations omitted).
This Court has further discussed the issue of relevancy as follows.
Evidence is relevant if it has any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or
less probable that it would be without the evidence. See Pa.R.E. 401.
“Evidence is relevant if it logically tends to establish a material fact in the
case, tends to make a fact at issue more or less probable or supports a
reasonable inference or presumption regarding a material fact.”
Commonwealth v. Loughnane, 128 A.3d 806, 818 (Pa. Super. 2015),
appeal granted in part, 2016 WL 5819328 (Pa. July 19, 2016) (citation
omitted). This Court has stated:
Relevant evidence may nevertheless be excluded if its
probative value is outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Because all relevant Commonwealth evidence is meant to
prejudice a defendant, exclusion is limited to evidence so
prejudicial that it would inflame the jury to make a decision
based upon something other than the legal propositions relevant
to the case. As this Court has noted, a trial court is not required
to sanitize the trial to eliminate all unpleasant facts from the
jury’s consideration where those facts form part of the history
and natural development of the events and offenses with which
[a] defendant is charged.
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Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004), appeal
denied, 876 A.2d 392 (Pa. 2005) (quotation marks, footnote and citation
omitted).
We first address the issue of the pornography. We wish to clarify, as
the trial court did, that it did not bar Appellant from mentioning the victim’s
independent viewing of pornography, but refused Appellant’s request to
admit evidence of the details of the sites the victim allegedly viewed. (See
Trial Ct. Op., at 7, 18-19). To the extent that Appellant claims otherwise, he
misstates the record. (See Appellant’s Brief, at 24-28). Moreover,
Appellant devotes the majority of his argument on this issue to a discussion
of whether viewing of pornography is covered by the Rape Shield Law, see
18 Pa.C.S.A. § 3104(a). (See Appellant’s Brief, at 24-28). However, as the
trial court correctly notes, it specifically found that the Rape Shield Law did
not cover the viewing of pornography. (See Trial Ct. Op., at 7, 18-19).
Rather, the trial court stated that Appellant had not established the “content
of the pornography viewed[.]” (Id. at 18).
At no point in his brief does Appellant address the trial court’s main
concern, expressed, as we discuss below, during the hearing, that prior to
addressing the issue of relevance, Appellant had to lay a proper foundation
for the admission of the evidence and that he had not done so at the two
pre-trial hearings on this issue.
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Our review of the record demonstrates that at the initial hearing on
this issue, the trial court specifically warned Appellant that he would have to
demonstrate “the specific shots of pornography that you intend to use and
the date and the content so that I can rule appropriately on that.” (N.T.
Hearing, 8/18/15, at 8). Later, the trial court reiterated:
. . . The question here is the content, and I want to know
specifically what the content is that you intend to introduce. I
want to see the slides that you would present to the jury for me
to be able to rule on that. . . . [Y]ou need to establish that it was
her that looked at the site. Just the fact that she had that—a
device, you would have to establish and lay an appropriate
foundation that she was the one accessing the sites for it to be
admissible. . . . I’m saying you have to lay the foundation. Your
mere assertion to me in oral argument that she was the only one
who had access is not enough. You will have to produce
evidence. . . .
(Id. at 10-12). The trial court then continued the hearing for Appellant to
produce expert testimony on this issue. (See id. at 17, 27).
At the continued hearing, Appellant’s expert, Louis Cinquanto, testified
that he could not retrieve the specific images viewed by the victim from her
computer but, instead, had to use a third-party website that archives every
website on the web by regularly taking snapshots of the websites. (See N.T.
Hearing, 9/21/15, at 30). The trial court pointed out that, because Mr.
Cinquanta took the images he used in the expert report not from the victim’s
computer but from a third party’s picture of the website, Appellant could not
authenticate them without bringing in an employee of that third party
because otherwise his testimony was hearsay. (See id. at 31-32).
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Moreover, the testimony at the hearing also established that, for many
of the websites, there were not snapshots of the date in question and,
because of this, Appellant could not demonstrate what the victim might have
seen on the day she allegedly accessed the website. (See e.g. id. at 38-
40). The trial court also noted that on some of the websites the snapshot
only showed the face page, not the contents of the website; Appellant could
not demonstrate that the victim had gone beyond the face page. (See e.g.
id. at 52-53). The trial court continued to note that Appellant was not laying
a sufficient foundation that the victim actually accessed and used the device,
that the sites were relevant, and that there needed to be a foundation with
respect to the third-party program used by Appellant’s expert. (See id. at
74-75). Further, the trial court found several of the sites were either not
pornographic and/or contained a combination of pornography and other
materials and there was no way to determine what part of the website the
victim accessed. (See e.g. id. at 76-77, 90-91, 95-96).
At the conclusion of the hearing, the trial court stated that while it
believed the specific contents of the websites were not relevant, it would not
make a ruling on that basis until trial, but that even if certain of the sites
were relevant, Appellant needed to be able to “authenticate it.” (Id. at 100;
see id. at 99-100). The court specifically described the foundation Appellant
would need to lay before it would admit the details of the pornography sites.
Appellant would need to:
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. . . establish that, one, that what the site was that was viewed
on the particular date.
You would want to have to bring somebody, I believe, in
from [the third-party website that photographs websites] to
establish . . . that they took a snapshot of those dates of these
sites. Then you’re going to have to establish that [the victim], in
fact, at least by circumstantial evidence viewed it. And then you
are going to have to establish that somehow it’s relevant.
Those are hurdles for any piece of evidence. So I don’t
know whether you want to—I can only tell you where we are
right now, and right now I don’t see the relevance of any of this.
If you do think it’s relevant at trial, you’ll come to sidebar and let
me know.
But I will tell you without the person from—somebody from
[the third-party website that photographs websites] who can say
what the sites are, you are not going to be able to lay a
foundation.
(Id. at 102-03).
Appellant does not discuss this issue in his brief, and does not cite to
any point at trial where he attempted to lay a foundation for admission of
this material. (See Appellant’s Brief, at 24-28). Moreover, Appellant does
not cite to any portion of the record wherein he attempted to introduce this
evidence at trial and the trial court held that it was not relevant. (See id.)
We remind Appellant that it is not this Court’s responsibility to comb through
the record seeking the factual underpinnings of his claim. See
Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. Super.
1997) (“In a record containing thousands of pages, this [C]ourt will not
search every page to substantiate a party’s incomplete argument”); see
also Langman v. Keystone Nat’l Bank & Trust Co., 672 F. Supp. 2d 691,
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694 (E.D. Pa. 2009), aff’d, 502 Fed.Appx.2d 220 (3rd Cir. 2012) (quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are
not like pigs, hunting for truffles buried in briefs—or, for that matter, in the
thousands of pages of record that accompany them.”)5 (citation omitted)).
In any event, even if Appellant’s argument did not suffer from these
fatal flaws, he has not shown that he was prejudiced. Our Supreme Court
has stated:
An error will be deemed harmless where the appellate court
concludes beyond a reasonable doubt that the error could not
have contributed to the verdict. If there is a reasonable
possibility that the error may have contributed to the verdict, it
is not harmless. In reaching that conclusion, the reviewing court
will find an error harmless where the uncontradicted evidence of
guilt is overwhelming, so that by comparison the error is
insignificant. . . .
Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003) (citation
and footnote omitted).
Despite Appellant’s protestations to the contrary, the record clearly
shows that this issue of the victim’s watching of pornography was placed
before the jury. Defense counsel elicited testimony from the victim that she
had pornographic images on her computer that she used as masturbatory
aids and that, when Appellant requested to see pornography, this is what
____________________________________________
5
“While we recognize that federal court decisions are not binding on this
court, we are able to adopt their analysis as it appeals to our reason.”
Kleban v. Nat. Union Fire Ins. Co. of Pittsburgh, 771 A.2d 39, 43 (Pa.
Super. 2001).
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she showed him. (See N.T. Trial, 10/21/15, at 155-56). He also obtained
from the victim that her mother and Appellant punished her for viewing
pornography on her electronic devices. (See id. at 159). Further, Appellant
established through the testimony of Detective Schirmer that the victim’s
testimony at trial with respect to pornography was inconsistent with her
testimony at the preliminary hearing that she never viewed on-line
pornography. (See N.T. Trial, 10/23/15, at 73-74).
Moreover, Appellant elicited testimony from the victim’s Mother that
she was concerned about the victim’s on-line activities, including viewing
pornography, and that she regularly punished the victim for this. (See id.
at 143-44). Lastly, Appellant particularly pointed out the victim’s viewing of
inappropriate websites during his closing argument and implied that this was
where she learned about the sexual activity testified to at trial. (See id. at
357, 359-60, 367-68, 377). Thus, it is clear that while the specific details of
what websites the victim viewed were not placed in front of the jury, the
jurors were well aware that the victim had viewed pornography on her own.
Therefore, Appellant has not shown that he suffered more than de minimis
prejudice from not being allowed to place the specific details of the
pornography sites before the jury. See Commonwealth v. Passmore, 857
A.2d 697, 711 (Pa. Super. 2004), appeal denied, 868 A.2d 1199 (Pa. 2005)
(error is harmless when “the prejudice was de minimis[.]”) (citation
omitted).
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Appellant last claims that he was prejudiced when the trial court did
not allow him to introduce a “short story” written by the victim where the
main character “shared her own characteristics and diagnoses.” (Appellant’s
Brief, at 28; see id. at 30). However, we find that Appellant waived this
claim.
Preliminarily, we note it is well-settled that:
[i]f an appellant has properly preserved an issue for
appellate review, the appellant must include in his or her brief a
“statement of the case” including a “statement of place of raising
or preservation of issues.” Pa.R.A.P. 2117(c). This information
must also be referenced in the argument portion of the appellate
brief. Pa.R.A.P. 2119(e).
Commonwealth v. Baker, 963 A.2d 495, 502 n.5 (Pa. Super. 2008),
appeal denied, 992 A.2d 885 (Pa. 2010). Further, “it is not the responsibility
of this Court to scour the record to prove that an appellant has raised an
issue before the trial court, thereby preserving it for appellate review.” Id.
at 502 n.6 (citations omitted).
In this case, neither Appellant’s statement of the case nor the
argument section of his brief contains a specific “statement of place of
raising or preservation of [his] issues” and it is not this Court’s responsibility
to scour the certified record, including two pre-trial transcripts and a lengthy
trial transcript, to prove that Appellant preserved this issue. Pa.R.A.P.
2117(c); see Baker, supra at 502 n.5, n.6; (Appellant’s Brief, at 6-10, 28-
30).
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“[I]t is an appellant’s duty to ensure that the certified record is
complete for purposes of review.” Commonwealth v. Reed, 971 A.2d
1216, 1219 (Pa. 2009). “[A]n appellate court cannot consider anything
which is not part of the record in the case . . . because for purposes of
appellate review, what is not of record does not exist.” Commonwealth v.
Johnson, 33 A.3d 122, 126 n.6 (Pa. Super. 2011), appeal denied, 47 A.3d
845 (Pa. 2012) (citations and internal quotation marks omitted).
In the instant matter, while both Appellant and the trial court claim
that this issue was raised at the August 18, 2015 hearing, we find nothing in
the record to support this contention. (See generally N.T. 8/18/15, at 2-
52; see also Appellant’s Brief, at 9; Trial Ct. Op., at 6-7). The only
discussion we can find with respect to this issue occurred during trial. After
finding that statements made in counseling are inadmissible, the trial court
asked defense if he “want[ed] to make a record regarding . . . the story[.]”
(N.T. Trial, 10/21/15, 139). Counsel replied, “no.” (Id.). A brief discussion
then ensued about there being no copy of the story for the Commonwealth.
The trial court stated, “the [victim] did a paper about a fictitious person who
had the same diagnoses and talked about the person being a liar.” (Id.).
Defense counsel agreed that this summary was correct; the trial court stated
it would not allow it “if that’s the extent of the offer.” (Id. at 140). Defense
counsel did not object. (See id.).
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Thus, there is no record of the basis for Appellant’s request to admit
the story. There is nothing that demonstrates that he raised his claim of the
exclusion of relevant evidence below. While the trial court’s ruling on this
issue is of record, there is nothing that shows that Appellant objected to it or
otherwise preserved this issue for our review.
Again, we note, “our review is limited to those facts which are
contained in the certified record” and what is not contained in the certified
record “does not exist for purposes of our review.” Commonwealth v.
O'Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citations omitted). Here,
because the majority of any discussion regarding Appellant’s attempt to
admit the story is dehors the record, Appellant waived this issue on appeal.6
See O’Black, supra at 1240; see also Reed, supra at 1219 (finding
waiver and declining to review appellant’s issue with incomplete record);
Johnson, supra at 126 (declining to reach merits of appellant’s issue where
it was deemed waived); Commonwealth v. Rovinski, 704 A.2d 1068,
1073 (Pa. Super. 1997), appeal denied, 723 A.2d 1024 (Pa. 1998) (waiving
appellant’s claim of counsel’s ineffective assistance based on his opening
____________________________________________
6
We note that, “[w]here portions of a proceeding are unrecorded,
appellant’s burden to supply a record may be satisfied through the
statement in absence of transcript procedures.” Rovinski, infra at 1073
(citing Pa.R.A.P. 1923). The record reflects that Appellant made no attempt
to comply with the requirements of Rule 1923.
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statement where he failed to provide transcript of statement in certified
record).
Appellant’s issues are either waived or lack merit. Thus, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2017
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