J-A15001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NICHOLAS DUPREE
Appellant No. 1636 EDA 2013
Appeal from the Judgment of Sentence May 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000172-2010
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J.: FILED JULY 29, 2014
Appellant, Nicholas Dupree, appeals from the judgment of sentence
entered May 13, 2013, by the Honorable Gwendolyn N. Bright, Court of
Common Pleas of Philadelphia County. We affirm.
This case stems from a series of incidents in 2009 during which
Dupree repeatedly sexually assaulted his nine-year-old minor daughter, ND.
On September 14, 2012, following a jury trial, the jury convicted Dupree of
Involuntary Deviate Sexual Intercourse with a
Corruption of Minors, Indecent Assault, and Aggravated Indecent Assault.1
On May 13, 2013, the trial court sentenced Dupree to the mandatory
minimum 10-
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1
18 PA.CONS.STAT.ANN. §§ 3123(b), 4302, 6301(a)(1), 3126(a)(7) and
3125(a)(1).
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ted indecent assault,2 and terms of probation for
Reconsideration of Sentence without a hearing on May 22, 2012. This timely
appeal followed.
On appeal, Dupree raises the following issues for our review:
I. Did not the trial court err in admitting evidence of prior
bad acts including, but not limited to both the fact of Mr.
purporting to support a number of charges which were
dismissed, involving alleged prior sexual misconduct
committed by Mr. Dupree upon his daughter, the
complainant in the instant matter?
II. Did not the trial court further err in admitting hearsay
testimony by a former assistant district attorney, Robert
Foster, who was improperly permitted to testify
purported state of mind, his opinion that the complainant
was truthful, his opinion that children do not make up what
was purported to be the substance of th
testimony, and what the alleged facts were in the prior
case regarding the complainant, which facts were neither
proved, or admitted?
III. Did not the trial court err in finding that there was no
prejudice to Mr. Dupree in the seating of Juror #12,
extraordinary relief?
IV. Was not the sentence imposed by this [h]onorable [c]ourt
excessive under the circumstances, and did not the trial
court abuse its discretion in sentencing Mr. Dupree to more
than the mandatory minimum, which minimum was more
than sufficient to punish Mr. Dupree?
____________________________________________
2
Indecent Assault merged with Aggravated Indecent Assault for sentencing
purposes.
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Dupree first claims that the trial court erred when it admitted evidence
y plea in
2005 to simple assault against the same victim in this matter as well as
testimony regarding the facts surrounding that episode of criminal conduct.
and will be reversed only upon a showing that the trial court clearly abused
Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa.
Super. 2012) (internal citations omitted).
bad acts or
proclivities. See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.
Super. 2008). There are, however, certain notable exceptions to this
prohibition:
One such exception arises in the prosecution of sexual offenses.
Evidence of prior sexual relations between defendant and his or
her victim is admissible to show a passion or propensity for illicit
sexual relations with the victim. This exception is limited,
however. The evidence is admissible only when the prior act
involves the same victim and the two acts are sufficiently
connected to suggest a continuing course of conduct. The
admissibility of the evidence is not affected by the fact that the
prior incidents occurred outside of the statute of limitations.
Commonwealth v. Young, 989 A.2d 920, 925 (Pa. Super. 2010) (citation
omitted).
Dupree argues, without any further elaboration, that the act to which
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Young).3 We disagree.
significance of evidence which provides [the factfinder] with the
res gestae, or complete history, of a crime.
[T]he trial court is not ... required to sanitize the trial to
eliminate all unpleasant facts from ... consideration where
those facts are relevant to the issues at hand and form
part of the history and natural development of the events
and offenses for which the defendant is charged.
Res gestae evidence is of particular import and significance in
trials involving sexual assault. By their very nature, sexual
assault cases have a pronounced dearth of independent
eyewitnesses, and there is rarely any accompanying physical
evidence.... [In these] cases the credibility of the complaining
witness is always an issue.
Commonwealth v. Wattley, 880 A.2d 682, 687 (Pa. Super. 2005)
(internal citations and quotes omitted).
Instantl
victim and the factual circumstances surrounding that plea are undoubtedly
connected to the current criminal acts against the same victim and clearly
suggest a continuing course of conduct. Although certainly prejudicial, we
____________________________________________
3
The decision in Young, which held prior bad acts for which a defendant has
been acquitted are admissible und
prior bad acts with which this Court was presented in Young were
committed against the same victim as in the prior episode of abuse not a
separate individual.
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[finder of fact] as to sweep them beyond a rational consideration of guilt or
Commonwealth v. Sherwood, 603 Pa.
92, 116 n.25, 982 A.2d 483, 498 n. 25 (2009) (citation omitted).
Accordingly, we find the trial court properly admitted the evidence of
admission of alleged hearsay and inappropriate opinion testimony by former
assistant district attorney, Robert Foster.4 Dupree first argues the former
9/6/12 at 51. Even if we were to find this testimony to be objectionable, the
record reveals that Dupree did not raise a contemporaneous objection to this
testimony at trial. Accordingly, this claim is waived. See Commonwealth
v. May
2005 case was re
____________________________________________
4
As we have already determined that the trial court properly admitted
evidence and testimony regarding the allegations of abuse arising out of the
2005 incident involving ND, we need not address this issue further.
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Dupree additionally argues that the former ADA improperly offered his
-direct examination. See, e.g.,
Commonwealth v. Walker, --- A.3d ---, 2014 WL 2208139, *12 (Pa.
upon the jury's basic
83. Counsel did not object to this testimony. Regardless, on cross-
examination, defense counsel asked Foster whether, in his opinion, ND was
truthful. See
issue of
-direct examination
was in error. See Commonwealth v. Kruder, 62 A.3d 1038, 1058 (Pa.
Super. 2013)
that the Commonwealth chose to explore further what was behind that
Dupree next argues that the trial court erred when it denied his Motion
for Extraordinary Relief on the basis that juror Eugene Epperson should not
have been seated and that Mr. Epperson committed misconduct which
See
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mother, Sonja Dupree, and that there was some animosity between the two
of them prior to trial. See id.
The right to be judged by a fair and impartial jury of one's peers
is, of course, firm and well-established. However, the inalterable
fact of human frailty requires us to recognize that not every act
of juror misconduct warrants the declaration of a mistrial. Only
when there has been prejudice to the accused does an act of
juror misconduct require the granting of a new trial.
Commonwealth v. Flor, 606 Pa. 384, 439, 998 A.2d 606, 639 (2010)
(citations omitted).
Applying this standard, the trial court explained its reasoning for
Extraordinary Relief to consider this issue. [Sonja Dupree]
testified that for a short time she and Epperson worked in the
same office at the Domestic Relations Division and that she
believed Epperson harbored hostility towards her as a result of
matters pertaining to work assignments.
Throughout the trial [Sonja Dupree] was sequestered and
never inside the courtroom. She did not testify in the case. The
only time she saw Epperson was in the hallway of the courtroom
and as Epperson exited and entered the Courthouse. Epperson
was not identified in any way as a juror and [Sonja Dupree]
the courthouse.
Epperson testified that he is a Hearing Officer in the
Domestic Relations Division. He explained that he had minimal
contact with [Sonja] Dupree and that during the initial voir dire
when the names of potential witnesses were revealed he did not
recognize her name. Epperson further stated that [Sonja]
Dupree worked with him for a very brief time and that he had no
disputes with her over anything. He stated that he was unaware
that there was no juror misconduct. Error was not committed.
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Trial Court Opinion, 8/28/13 at 8-
reasoning and find that Dupree suffered no prejudice as a result of juror
-fold. He first argues
d a
reasonable doubt, facts sufficient to establish any mandatory minimum. Nor
at 15. Dupree does not elucidate what facts, precisely, were not determined
by the jury to have been proven beyond a reasonable doubt. Moreover, this
Complained of on Appeal. Ordinarily, such failures would result in waiver of
See Commonwealth v. Delvalle, 74 A.3d 1081,
1087 (Pa. Super. 2013) (finding undeveloped claim to be waived);
Commonwealth v. Carpenter
-
ordered 1925(b) statement wil
However, because the application of a mandatory minimum sentence gives
rise to illegal sentence concerns, which are non-waivable, we will proceed to
address this issue on the merits. See Commonwealth v. Watley, 81 A.3d
108, 118 (Pa. Super. 2013).
Dupree was convicted of Involuntary Deviate Sexual Intercourse with a
Child, 18 PA.CONS.STAT.ANN. 3123(b). Dupree was sentenced to the
mandatory minimum sentence pursuant to 42 PA.CONS.STAT.ANN. § 9718(d),
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whic
convicted under 18 PA.CONS.STAT.ANN. § 3123, where the victim is under 16
years of age. His argument suggests that the fact necessary to support the
mandatory minimum that the victim, ND, was under 16 years of age was
not determined by a jury or proven beyond a reasonable doubt in violation
n Alleyne v. United States,
--- U.S. ---, 133 S.Ct. 2151, 186 L.E.2d 314 (2013).
According to the Alleyne Court, a fact that increases the
sentencing floor is an element of the crime. Thus, it ruled that
facts that mandatorily increase the range of penalties for a
defendant must be submitted to a fact-finder and proven beyond
a reasonable doubt. The Alleyne decision, therefore, renders
those Pennsylvania mandatory minimum sentencing statutes
that do not pertain to prior convictions constitutionally infirm
insofar as they permit a judge to automatically increase a
defendant's sentence based on a preponderance of the evidence
standard.
Watley, 81 A.3d at 117-118.
Here, the record undoubtedly establishes that the jury did find beyond
a reasonable doubt that the victim was under 16 years of age. The trial
court specifically instructed the jury that in order to find Dupree guilty of
IDSI with a child, indecent assault of a child, and aggravated indecent
assault of a child, they were required to find, beyond a reasonable doubt,
-
183, 186-188.
In convicting Dupree of these crimes, the jury clearly determined
beyond a reasonable doubt that ND was under 13 years of age as instructed.
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Commonwealth v. Arrington
omitted). Accordingly, we find the fact triggering the application of the
mandatory minimum in this case was properly determined by the jury and
therefore the sentence was not in error.
Dupree alternatively argues that his sentence was excessive in
violation of the mandates of 42 PA.CONS.STAT.ANN. § 9721. See
Brief at 5, 15. Dupree does not describe the manner in which his sentence
ran afoul of the section 9721, or otherwise describe in what manner the
Id
surrounding this claim to be woefully underdeveloped. Consequently, this
claim is waived. See Delvalle, supra.
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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