J-A03011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VINCENT ANTONELLO CLARK
Appellant No. 218 MDA 2013
Appeal from the Judgment of Sentence April 3, 2012
In the Court of Common Pleas of Wyoming County
Criminal Division at No(s): CP-66-CR-0000490-2009
CP-66-CR-0000491-2009
CP-66-CR-0000492-2009
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 03, 2014
Appellant, Vincent Antonello Clark, appeals from the judgment of
sentence entered by the Honorable Russell D. Shurtleff, Court of Common
Pleas of Wyoming County. After careful review, we affirm.
In January 2009, the Commonwealth charged Clark with various
crimes arising from allegations that he had, over a three year period,
sexually assaulted his children, all under the age of 8 at the relevant times,
and his nieces, all under the age of 11 at the relevant times. Trial on the
charges commenced on December 12, 2011. Ultimately, the jury found
Clark guilty on all charges, and on April 3, 2012, the trial court sentenced
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A03011-14
Clark to an aggregate term of imprisonment of 50 to 100 years. Clark filed
timely post-sentence motions, which the trial court denied via order dated
December 12, 2012. This timely appeal followed.
On appeal, Clark raises the following issues for our review:
1.
Pa.R.Crim.P. 600 violated where trial in the instant case
commenced after the mechanical run date under Rule 600
and where the Commonwealth failed to show the exercise of
due diligence in bringing Appellant to trial?
2. Did the trial court err in failing to provide standard jury
instruction 4.13A regarding prompt report of sexual offenses
when Appellant was charged in engaging in prohibitive sexual
contact with minor children from 2006 through January of
2009 and where said alleged victims first reported said sexual
assaults in January 2009?
a. In refusing to provide the requested jury instruction, did
credibility of the complaining witnesses?
3.
prior crimes, wrongs or bad acts pursuant to Pa.R.E 404(b)
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident?
a. Was the probative value of said evidence outweighed by
the prejudice engendered by the introduction of the
same?
4. Did the trial court err in allowing the Commonwealth to
introduce hearsay statements of the minor complaining
of the hearsay
rule, 42 Pa.C.S.A. § 5985.1 where the court failed to evaluate
admission as statutorily required?
5. Did the trial court err in failing to enforce a subpoena served
by Appellant upon
confirmation that a complaining witness, [], while in Sexual
abuse counseling, failed to reveal an ongoing sexual assault
allegedly perpetuated by Appellant?
-7.
-2-
J-A03011-14
In his first issue on appeal, Clark contends that the trial court erred in
concluding that his right to a speedy trial had not been violated. Our
Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.
Super. 2004) (en banc) (citations omtted).
to the evidence on the record of the Rule 600 evidentiary hearing and the
Id. (citation omitted) ate court must
Id. at
1239 (citation omitted).
cused's
Id. The dual purposes
of Rule 600 are further described as follows.
In determining whether an accused's right to a speedy trial has
been violated, consideration must be given to society's right to
effective prosecution of criminal cases, both to restrain those
guilty of crime and to deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed to insulate
the criminally accused from good faith prosecution delayed
through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy
trial rights of an accused, Rule 600 must be construed in a
manner consistent with society's right to punish and deter crime.
Id. (citations and brackets omitted)
-3-
J-A03011-14
In cases such as this one, Rule 6001 requires the Commonwealth to
bring a defendant to trial within one year of the filing of the criminal
complaint. See Pa.R.Crim.P., Rule 600(A)(3). Charges shall be dismissed
under Rule 600 where a defendant on bail is not brought to trial within 365
days of the date on which the criminal complaint against him is filed. See
Commonwealth v. Dixon, 589 Pa. 28, 37, 907 A.2d 468, 474 (2006). See
also Pa.R.Crim.P., Rule 600(A)(3) (
). Rule 600, however,
specifically contemplates that certain periods of time shall be excluded in
calculating compliance with the rule. Rule 600 provides, in pertinent part,
the following:
(C) In determining the period for commencement of trial, there
shall be excluded therefrom:
(1) the period of time between the filing of the written complaint
and the defendant's arrest, provided that the defendant could
not be apprehended because his or her whereabouts were
unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives
Rule 600;
(3) such period of delay at any stage of the proceedings as
results from:
(a) the unavailability of the defendant or the defendant's
attorney;
(b) any continuance granted at the request of the defendant or
____________________________________________
1
Prior Rule 600 was rescinded on October 1, 2012, and new Rule 600 was
made effective on July 1, 2013. See 42 Pa.B. 6622. Since Prior Rule 600
analysis will focus on that
version of the Rule.
-4-
J-A03011-14
Pa.R.Crim.P., Rule 600(C).
Furthermore, even where a Rule 600 violation occurs, a motion to
is not expressly defined in Rule 600, but the legal construct takes into
account delays which occur as a result of circumstances beyond the
Commonwealth v.
Jones, 886 A.2d 689, 700 (Pa. Super. 2005) (citation omitted).
Here, the controlling criminal complaints were filed on January 17,
2009, and January 29, 2009. On February 5, 2010, the Commonwealth
placed the cases on the criminal trial list for the week commencing February
22, 2010. On February 12, 2010, Clark filed an omnibus pretrial motion,
which included a motion to dismiss pursuant to Rule 600, a request for
additional discovery, and a motion to compel the filing of a bill of particulars.
In response to the filing of the omnibus pretrial motion, the trial court
scheduled a hearing on the motion for March 26, and continued the trial until
April 19, 2010.
On appeal, Clark concedes that 53 days of the relevant time period
were chargeable to him based upon a request for a continuance of the
preliminary hearing. See As such, trial should have
been held before 418 days had elapsed from the filing of the complaints.
Under this calculation, trial should have been held by March 11, 2010 on the
complaint filed January 17, 2009, and by March 23, 2010, for the complaints
-5-
J-A03011-14
filed on January 29, 2009. Clark asserts since the hearing on his omnibus
pretrial motion was not held until March 26, 2010, Rule 600 was violated.
Clark does not argue that any subsequent time periods are chargeable
against the Commonwealth.
A defendant is unavailable for trial if a delay in the commencement
of trial is caused by the filing of the pretrial motion and therefore the time
between the filing of the motion and its resolution is excludable under Rule
600. Commonwealth v. Hill, 558 Pa. 238, 254, 736 A.2d 578, 587
(1999).
which was on the trial list for February 22, 2010. Furthermore, as noted
above, Clark does not argue that any time after the hearing on his omnibus
pretrial motion is relevant to the calculation under Rule 600. As such, the
appropriate end date for the Rule 600 calculation is February 12, 2010,
when Clark filed his omnibus pretrial motion. Since this date was prior to
the calculated dates of March 11 and March 23, 2010, C
appeal merits no relief.
In his second issue, Clark argues that the trial court erred in refusing
to provide the jury with standard jury instruction 4.13A regarding prompt
report of sexual offenses. Our scope and standard of review of this issue is
as follows:
In reviewing a challenge to the trial court's refusal to give a
specific jury instruction, it is the function of this Court to
In examining the propriety of the instructions a trial court
-6-
J-A03011-14
presents to a jury, our scope of review is to determine whether
the trial court committed a clear abuse of discretion or an error
of law which controlled the outcome of the case. A jury charge
will be deemed erroneous only if the charge as a whole is
inadequate, not clear or has a tendency to mislead or confuse,
rather than clarify, a material issue. A charge is considered
adequate unless the jury was palpably misled by what the trial
judge said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the parties
and its refusal to give a requested charge does not require
reversal unless the Appellant was prejudiced by that refusal.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)
(internal citations, quotation marks, and brackets omitted), appeal denied,
835 & 836 MAL 2013 (Pa. April 2, 2014).
The prompt complaint instruction is premised upon the belief that a
victim of a sexual assault would reveal at the first available opportunity that
an assault occurred. See id. The instruction permits a jury to discredit a
available opportunity. See id
Id.
The propriety of a prompt complaint instruction is determined on
a case-by-case basis pursuant to a subjective standard based
upon the age and condition of the victim. For instance, where an
assault is of such a nature that the minor victim may not have
appreciated the offensive nature of the conduct, the lack of a
prompt complaint would not necessarily justify an inference of
fabrication.
Id. (internal citations and quotation marks omitted).
-7-
J-A03011-14
In this case, the trial court engaged in a thorough analysis of the age
and condition of each victim. In refusing to give the prompt complaint
the testimony of record regarding the violent and numerous threats made to
these children if they disclosed what was happening certainly constitute a
Trial Court Opinion, 2/14/2013, at 9. Our review of the record finds
annot conclude
that the trial court committed an abuse of discretion or an error of law in
appeal merits no relief.
Next, Clark argues that the trial court erred by admitting evidence of
prior alleged crimes committed by Clark. We note that
the admission of evidence is within the sound discretion of the
trial court and will be reversed only upon a showing that the trial
court clearly abused its discretion. Admissibility depends on
relevance and probative value. 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. Evidence,
even if relevant, may be excluded if its probative value is
outweighed by the potential prejudice.
Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012)
(internal citations omitted). It is impermissible to present evidence at trial
criminal character or proclivities. See Commonwealth v. Hudson, 955
-8-
J-A03011-14
A.2d 1031, 1034 (Pa. Super. 2008). Such evidence, however, may be
Commonwealth v.
Russell, 938 A.2d 1082, 1092 (Pa. Super. 2007) (citation omitted). Rule
[e]vidence of other crimes, wrongs, or acts may be
admitted for other purposes, such as proof of motive, opportunity, intent,
Pa.R.E., Rule 404(b)(2). Rule 404(b)(3), however, mandates that other
upon a showing that the probative value of the evidence outweighs its
. See also Russell, 938
A.2d at 1092.
means a tendency to suggest decision on an improper basis or divert the
Commonwealth v. Wright, 599 Pa. 270, 325, 961 A.2d 119, 151 (2008).
effect of the evidence against its probative value and it is not for an
Commonwealth v. Parker, 882
A.2d 488, 492 (Pa. Super. 2005), , 591 Pa. 526,
919 A.2d 943 (2007).
eliminate all unpleasant facts from the jury's consideration where those facts
are relevant to the issues at hand and form part of the history and natural
-9-
J-A03011-14
Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009) (citing
Commonwealth v. Dillon, 592 Pa. 351, 366, 925 A.2d 131, 141 (2007)).
Here, the Commonwealth filed a notice of its intent to present
testimony of sexual assaults committed by Clark against the victims in
various locations, including New Jersey. The Commonwealth argued that the
jury should be permitted to consider the evidence presented in any one of
the cases against Clark in the other cases. The Commonwealth contended
that all of the evidence of sexual assaults were admissible to show a
common scheme. After a hearing on the issue, the trial court ruled that
evidence of sexual assaults on the victim witnesses in the trial would be
admissible, while evidence of sexual assaults of non-testifying victims would
Clark argues that the trial court erred as the evidence of prior sexual
assaults did not meet any of the purposes set forth in Rule 404(b).
However, the trial court held that this evidence was evidence of a common
geographic locations, in a similar manner and they represent a common
scheme whereby Clark would get the children alone, or together, and assault
t abuse its
- 10 -
J-A03011-14
discretion in admitting evidence of prior sexual assaults against the victim
witnesses.
intent to present evidence of prior bad acts was untimely. In this argument,
Clark contends that the four months between the notice and trial was
insufficient to permit him to investigate the allegations of crimes in another
state. The trial court concluded that four months was sufficient time to
investigate the allegations. In the absence of any other allegation or
evidence, we agree with the trial court. Four months represents sufficient
time to investigate the issues raised by the Commonwealth in its notice.
In his fourth issue, Clark claims that the trial court erred in permitting
the Commonwealth to present hearsay statements of the minor victims at
trial. The Tender Years Exception to the Hearsay Rule provides that an out
of court statement of a minor victim or witness regarding, among others, a
crime of sexual assault, is admissible if:
(1) The court finds in an in camera hearing, that the evidence is
relevant and that the time, content and circumstances of the
statements provided sufficient indicia of reliability; and (2) the
child either (i) testifies at the proceeding; or (ii) is unavailable as
a witness.
42 Pa.C.S.A. § 5985.1.
Here, Clark argues that the trial court failed to hold an in camera
hearing to determine if the hearsay testimony had sufficient indicia of
- 11 -
J-A03011-14
reliability. A review of the record indicates that there was no in camera
hearing on the reliability of the hearsay statements. However, the record
also indicates that Clark did not challenge the reliability of the statements
under the Tender Years Exception; rather, Clark requested an in camera
competency hearing on the witnesses. See Motion In Limine, filed
8/17/2011, at ¶ 20; N.T, Hearing, 8/18/2011, at 8-9. After setting forth the
parameters for the competency hearing, the trial court asked if the parties
were in agreement. Counsel for Clark responded,
Hearing, 8/18/2011, at 9.
A hearing under the Tender Years Exception statute is not the
equivalent of a competency hearing. See Commonwealth v. Walter, 93
A.3d 442, 451 (Pa. 2014). Furthermore, the statute requires a party to give
notice, including details of the proffer, that it intends to present hearsay
evidence under the exception. See 42 Pa.C.S.A. § 5985.1(b). The purpose
ovide the adverse party with a fair
Id.
Clark argues that the statute requires an in camera hearing before the
trial court may admit a hearsay statement pursuant to the Tender Years
Exception. However, we conclude that, so long as the notice provision is
satisfied, it is incumbent upon the adverse party to identify and object to
any issue with the proposed testimony. The trial court is not required to
hold an in camera hearing on any issue under the statute unless the adverse
- 12 -
J-A03011-14
party raises it. As noted, Clark did not request a hearing or determination
on the reliability of the out-of-court statements. Thus, the trial court was
not required to have a hearing on the issue. Accordingly, we conclude that
issue merits no relief on appeal.
In his fifth and final issue on appeal, Clark argues that the trial court
erred in denying his motion to compel compliance with a subpoena to a
victim counseling center regarding statements made by one of the victims in
this case. The trial court denied the motion to compel, holding that the
created by 42 Pa.C.S. § 5945.1 is an absolute privilege, which is not
overcome even by the constitutiona V.B.T.
v. Family Services of Western Pennsylvania, 705 A.2d 1325, 1329
(Pa.Super. 1998) (citations and footnote omitted). Clark contends that he
was not seeking disclosure of communications between the victims and a
counselor; he was rather
complaining witnesses in counseling failed to mention ongoing sexual assault
perpetrated a
sexual assault counselor is permitted to be disclosed. This bright-line rule
protects the important social policies undergirding the privilege, makes
application of the privilege straightforward, and avoids accidental disclosures
- 13 -
J-A03011-14
that might occur while parties attempt to define what information about the
statements is protected by the privilege.
final issue on appeal merits no relief.
affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/3/2014
- 14 -