Com. v. J.D.S.

J-S72001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

J.D.S.,

Appellant No. 420 WDA 2013

Appeal from the Judgment of Sentence January 8, 2013
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001776-2011

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 24, 2014

Joseph Daniel Scott appeals from the judgment of sentence imposed

on January 8, 2013, following a jury trial that resulted in his conviction for

Rape of a child (two counts), Involuntary Deviate Sexual Intercourse with a

child (four counts), Aggravated Indecent Assault of a child (less than 13

years of age), Indecent Assault of a child (two counts), Aggravated Indecent

Assault of a child (less than 16 years of age), Sexual Assault (five counts),

Statutory Sexual Assault (five counts), Incest (two counts), Corruption of

Minors (two counts), and Endangering the Welfare of Children. 1 The trial

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
Respectively, 18 Pa.C.S. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7),
3125(a), 3124.1, 3122.1, 4302(b), 6301(a)(1), and 5901.
J-S72001-14

court imposed an aggregate sentence of 60 to 120 years’ imprisonment. We

affirm.

Appellant raises the following issues on appeal:

I. Did the trial court abuse its discretion on or about June 19,
2012 and at trial in denying [Appellant’s] April 3, 2012 pre-trial
motion to present at trial the testimony and evidence listed in
paragraph 21(B) through (F) and (H) of said motion?

II. Did the trial court abuse its discretion in limiting defense
witness David Rundquist, Esquire’s testimony in terms of an
ongoing child custody dispute and its litigation?

III. Did the trial court abuse its discretion in denying
[Appellant’s] objections to irrelevant testimony related to prior
bad acts by [Appellant] unrelated to this prosecution, including:

A. Testimony by multiple witnesses that [Appellant]
viewed and/or made viewable pornography and/or child
pornography;

B. Testimony by child witness and cousin K.S. that
[Appellant] indirectly permitted children to be provided
with alcohol;

C. Testimony by victim K.S. that [Appellant] provided her
with marijuana; and

D. Testimony by Tiffany Lyle that [Appellant] asked victim
K.S. to expose her breasts?

IV. Did the trial court abuse its discretion in imposing sentences
upon [Appellant] aggregating to sixty (60) to one hundred
twenty (120) years?

Appellant’s Brief, at 4.

Appellant’s challenges to the evidentiary rulings of the trial court are

governed by the following standard:

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J-S72001-14

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.

Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002) (quoting

Commonwealth v. Stallworth, 781 A.2d 110, 117–18 (Pa. 2001)); see

also Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013).

We have reviewed the certified record, Appellant’s brief, the applicable

law, and the comprehensive opinion authored by the Honorable John F.

DiSalle, of the Court of Common Pleas of Washington County, entered

January 11, 2013. We conclude that Judge DiSalle’s opinion is dispositive of

the evidentiary issues presented in this appeal. Accordingly, we adopt the

opinion as our own for purposes of further appellate review.

Appellant also challenges discretionary aspects of his sentence. Such

appeals “are not guaranteed by right.” Commonwealth v. Grimes, 982

A.2d 559, 565 (Pa. Super. 2009). Following our review of the record, we

conclude that Appellant has waived consideration of his challenge.

It is well-settled that issues challenging the discretionary aspects
of sentencing must be raised in a post-sentence motion or by
raising the claim during the sentencing proceedings. Absent
such efforts, an objection to a discretionary aspect of a sentence
is waived.

Commonwealth v. Oree, 911 A.2d 169, 172 (Pa. Super. 2006) (citation

omitted). “This failure is not cured by submitting the challenge in a Rule

-3-
J-S72001-14

1925(b) statement.” Commonwealth v. Watson, 835 A.2d 786, 791 (Pa.

Super. 2003).

At his sentencing hearing, Appellant did not challenge the sentence

imposed, requesting only that the court impose concurrent periods of

incarceration for several of his offenses. See Sentencing Transcript,

01/08/2013, at 30. Following sentencing, Appellant failed to challenge any

discretionary aspects of his sentence, and his Rule 1925(b) statement did

not cure this failure. Thus, Appellant’s sentencing challenge is waived.

Absent waiver, we adopt Judge DiSalle’s disposition of Appellant’s challenge

to the discretionary aspects of his sentence.

Judgment of sentence affirmed.

Judge Shogan joins this memorandum.

Judge Strassburger files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/2014

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IN THE COURT Or: COMMON OF PLEAS OF WASHINGTON COUNTY,
PENNS YL YANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA )
)
)
v. ) No. 177601'2011
)
)
)

OPINION OF COURT

This matter cOl11csbefo[e the Co\j[( upon Defendant's direct appeal from the Judgment of

Sentence dated January 8, 2013, following his conviction, after a trial by jury, on September 21,

2012, oftwo counts of Rape ofa Child Less than 13 YeaTs oi'Age,l fom counts ofInvoJuntary

Deviate Sexuallntet-coUl'se with it Child Less Than 13 Years of Age,2 Aggravated Indecent

Assa\ilt of a Child Less Than 13 Years of Age,3 two counts of Indecent ASSault ora Child Less

Than 13 Yearsof Age, 4 Aggravated Indecent ASSilq11 of a Child Less Than 16 Yea.l's orAge,S

nve counts of Sexual Ass

[n addition to the specific incidents of sexual contact by the Defendant, KS. also testified to

"constant" touching of her thighs, buttocks and breasts by Defendant. 46 Family friend, Tiffany Lyle,

observed that, even as a teenager, KS. frequently sat on Defendant's lap and that Defendant would

36 TT Vol. I, p. 16.
37 TT Vol. I,p. 17.
38 TTVol. I, p. 17.
39 TT Vol. I, pp. 34-35.
40 TT Vol. I, p. 35.
41 TT Vol. I, p. 35.
42 TT Vol. I, p. 35.
43 TT Vol. I, p. 35.
44 TT Vol. 6, pp. 8- II.
45 TTVol. I, p. 35; Vol. 6, pp. 11-12.
46 TT Vol. I, pp. 12,29.
10
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place his hand on her thigh while K.S. did so.47 Ms. Lyle thought the behavior was odd and not age-

appropriate for a father and his teenage daughter. 48 K.S. testified that Defendant frequently smacked

her buttocks and grabbed her breasts over her shirt both at home and in public with no regard for

who else might be present. 49 She also testified that Defendant "always" found a reason to enter the

bathroom during her showers and that she believed Defendant had taken photographs of her with his

cellphone while she showered. so As a result, K.S. stopped showering in order to avoid Defendant's

intmsions. 5J

Defendant also engaged K.S. and Mother in discussions about purchasing a vibrator for K.S.,

as testified to by both Mother and K.S.s2 K.S. testified that the last time her father had penetrated her

was in connection with these discussions. 53 K.S. testified that Defendant sat down on the living

room couch on which K.S. was lying and pulled off her sweatpants and "stuck his fingers inside of

[K.S.]. ,,54 While penetrating her vagina with his fingers, Defendant said "he had to know what [K.S.]

liked" and "how big [the vibrator] had to be."ss This incident lasted briefly, as Defendant ceased

upon hearing Mother's voice from outside the home. s6

Ultimately, after the permanent separation of her parents in 2010, K.S.·s prerogative was to

live with Defendant in his trailer in spite of the years of sexual abuse she endured. 57 She explained

that she chose Defendant's home because she could have "as much alcohol and marijuana as [she]

471T Vol. 3, p. 49.
481T Vol. 3, p. 49.
491TVol. I,p. 13.
501T Vol. I, p. 22.
51 TT Vol. I, p. 23.
52 TT Vol. I, p. 18.
53 TT Vol. I, p. 18.
54 IT Vol. I, p. 18.
55 TT Vol. I, p. 18.
56 TT Vol. I, p. 19.
57 TT Vol. I, p. 64.
II
 Circulated 11/19/2014 08:55 AM

wanted."S8 K.S. also testified that she had never had a strong relationship with her mother, and, in

fact, her mother was verbally and physically abusive to her on several occasions. K.S. said that at the

time of the separation, she regularly fought with her mother, and that she preferred having to "fight

off' her father's sexual assaults to living with her mother. 59 In March or April of2011, K.S. moved

out of Defendant's trailer and into her Mother's home. K.S. testified that Defendant continued

"groping" her throughout the time she lived in trailer. . . .IIIIII• • with him, recalling that the

final incident of inappropriate touching by Defendant occurred sometime before she moved out.

Defendant's youngest daughter, victim 1.S., testified to a progressive course of sexual· abuse

by Defendant beginning when she was five years old and continuing until she was twelve. She

testified that he abused her at every home in which the family lived, including the trailer in which
. ~J,:5,
6o
Defendant lived after separating with Mother. As early as iii . J can remember, the Defendant

would "rub [her] vagina.,,61 As time went on, Defendant would "put his hands in my pants and grab
:::J. ;5 ,
my boobs and put his mouth on my privates and make me put my mouth on his privates.,,62 an 3

also testified that Defendant regularly would use a vibrator on her, put his tongue in her mouth when

he kissed her, and enter the bathroom when she bathed. 63

Defendant steadily escalated the abuse to which he subjected J.S. She testified that he made

her "suck on it," and then ejaculated into her mouth. M J.S. testified that Defendant told her to

swallow his ejaculate; when she responded that she did not want to swallow it, Defendant held her

58 TT Vol. I, p. 64.
59 TT Vol. 2, p. 33.
60TTVol. 2, pp. 104-108.
61 IT Vol. 2, p. 62.
62 TT Vol. 2, p. 61.
63 TT Vol. 2, p. 66.
64 IT Vol. 2, p. 76.
12
 Circulated 11/19/2014 08:55 AM

nose and covered her mouth, forcing her to do so.65 Jocelyn said the ejaculate tasted "like salt." 66

When J.S. was II years old, Defendant "put it in her butt.,,67 She testified that when she was lying in

bed with her father, he told her to pull her pants down. 68 Defendant then proceeded to penetrate her

anus with his penis. 69 She testified that the first time he penetrated her anus it hurt and caused her to

bleed from her anus.1°

When 1.S. was twelve, Defendant drove J.S. to a lot in Washington, Pennsylvania with an

unoccupied home on it/I Defendant parked the car and told J.S. to take her pants off. Defendant

then unzipped· his pants and took his penis out. n Defendant then told J.S. to "sit on it.,,73 J.S. did

what her father told her, and Defendant penetrated her vagina with his penis for the first time. 74 J.S.

testified that it hurt when her father penetrated her vagina with his penis. 7; J.S. testified that after her

father ejaculated, she asked Defendant, "Why are we doing ---- Why did you put it inside ofme?" to

which he responded "Because I can.,,76 J.S. testified that Defendant had vaginal intercourse with her

.
on approximateIy tl b
wee su 'JIlstances. 77
sequent

After midnight on the morning of June 25,2011, K.S. disclosed to her mother for the first

that Defendant had "touched her."n Prior to disclosing to her Mother, KS. had only ever discussed

65 TT Vol. 2, pp. 76-77.
66 TT Vol. 2, p. 76.
67 TT Vol. 2, pp. 67-69.
68 TT Vol. 2, p. 68.
69 TT Vol. 2, p. 68.
70 TT Vol. 2, p. 69.
71 TT Vol. 2, p. 78.
72 TT Vol. 2, p. 79.
73 TT Vol. 2, p. 79.
74 TT Vol. 2, p. 79.
75 TT Vol. 2, p. 79.
76 TTVol. 2, p. 81.
77 TT Vol. 2, p. 82.
78 TT Vol. 2, p. 14.
13
 Circulated 11/19/2014 08:55 AM

Defendant's behavior with one other person, a former boyfriend, N.D. 79 K.S. and N.D. testified to

only an oblique discussion of Defendant's behavior initiated by N.D. over concems with interactions

between father and daughter that made him uncomfortable. 8o K.S. testified that she had met with

mUltiple counselors and mental health professionals during a two or three year period directly

preceding her disclosure. 8) Several of those meetings andlor counseling sessions were conducted

confidentially between only K.S. and a counselor. 8z Although K.S. did not recall if any of those

individuals with whom she met specifically inquired as to whether she had ever been sexually

abused, she conceded that she had never disclosed that Defendant had sexually abused her. 81 When

asked if she would have made such a disclosure if asked directly by any of these counselors or

professionals, K.S. responded, that she would not have disclosed as that would have caused her "to

lose the one suppOlter I had.,,84

On the night that K.S. finally disclosed, K.S. and Mother were riding together to pick up
P,I-I,
Mother's then-fiance, now-husband, . . . . . . . from work.s> While en route to pick uP • .
P,I-! .
• • • •IIfK.S. disclosed. Mother testified that she asked K.S. ifshe was "150% sure.,,86 K.S.

testified that she told Mother dUl'ing their discussion that K.S. was concerned that "somebody had

touched" her younger sister, J.S. 87 The next moming Mother contacted Washington County Children

and Youth Services ("CYS") seeking advice as to how to proceed in light of her daughter's

79 IT Vol. 1, p. 66·68.
80 IT Vol. I, pp. 67-68; Vol. 6, p. 53-54
81 IT Vol. 2, pp. 3-15.
82 TT Vol. 2, p. 33.
83 TT Vol. 2, p. 33.
84 TT Vol. 2, p. 34.
85 IT Vol. I, pp. 37-38.
86 IT Vol. 3, p. 21
87 TT Vol. I, p. 32.
14
 Circulated 11/19/2014 08:55 AM

disclosure; CYS directed her to take K.S. to the State Police ban'acks to make a report. 88 On June

27,2011, Mother and K.S. went to the State Police barracks in Washington, Pennsylvania, where

they were interviewed by Trooper Sara Teagarden. 89

Dtu'ing the interview with Trooper Teagarden, K.S. made several disclosures consistent with

her testimony at trial, including, inappropriate touching by Defendant of private areas of her body

such as breasts and buttocks both in public and private, inappropriate language by Defendant, and

that Defendant touched K.S.'s genitalia. 9o K.S. told Trooper Teagarden about the incident in which

Defendant came into her bedroom and asked to touch her genitalia. 91 K.S. also reported to Trooper

Teagarden that her disclosure was motivated by concern for her younger sister, J.S., who at the time

was the same age as K.S. had been when abuse first began. 92 K.S. expressed concem that Defendant

might already have begun abusing J.S. 93 K.S. told Trooper Teagarden about the pornography she had

seen on Defendant's computer and cell phone. 94 K.S. reported that she had confronted Defendant to

tell him that it was inappropriate to have pornographic material around where her younger siblings

easily could access it. 95

Trooper Teagarden also spoke with mother on June 27, 2011, both in K.S.'s presence and

outside of 11. 96 Mother informed Trooper Teagarden only of events involving mother, but did not

introduce allegations of what Defendant had done to K.S. Mother gave examples of Defendant's use

88 TT Vol. I, pp. 67-68; Vol. 6, p. 13
89 TT Vol. 3, p. 90.
90 TT Vol. 3, p. 92.
91 TT Vol. 3, p. 93.
92 TT Vol. 3, pp. 93-94
93 TT Vol. 3, p. 94.
94 TT Vol. 3, p. 94
95 TT Vol. 3, p. 94
96 TT Vol. 3, pp. 94-95
IS
 Circulated 11/19/2014 08:55 AM

of vulgar language around their children, his possession of pornographic images and material in the

fam ily horne.97

At Trooper Teagarden's recommendation, Mother filed a petition for a Protection from

Abuse Order on her on behalf and the behalf of her three rninor children on June 28,2011.98 The

petition alleged that on July 23, 2007, Defendant asked K.S. to "let him rub her pussy."99 She

alleged that Defendant had tried to convince K.S. that it would "feel good," however, K.S. refused

and threatened to kill Defendant and tell "everyone what [hel did."1°° Defendant responded by

threatening to kill K.S. and Mother,if K.S. ever disclosed.1°1 The petition also included allegations

that Defendant had inappropriate pictures ofK.S. and their children as well as child pornography on

his computer.1°2

On July 13, 2011, K.S. went for a forensic interview at the Children's Advocacy Center at the

Washington Hospita1.1°3 The forensic interview was conducted by Jennifer Lytton of Washington

County CYS.1°4 Ms. Lytton is a trained forensic child interviewer. During her forensic interview,

K.S. repeated the disclosures she had made to Trooper Teagarden and further disclosed additional

incidents of sexual abuse consistent with her testimony at trial, including waking up to her father

masturbating over her and her sister as they slept.1°5

On July 19, 2011, again at Trooper Teagarden's instruction, Mother took KS.'s younger

siblings, J.S. and M.S. to the Children's Advocacy Center at Washington Hospital for forensic

97 TT Vol, 3, p, 95
98 TT Vol. 3., p. 100.
99 TT Vol. 3, pp. 100-101.
100 TT Vol. 3, p. 101,
101 TT Vol. 3, p. 101.
102 rr Vol. 3, p. 101.
103 TT Vol. 3, p. 93.
104 TT Vol. 3, p. 93.
105 TT Vol. 3, p. 103,
16
 Circulated 11/19/2014 08:55 AM

interviews.1"Neither J.S. nor M.S. made any disclosures of abuse during their interviews. In fact,

LS.specifically denied having been touched inappropriately or sexually by anybody. However,late

that evening or early into the morning of July 20, 2011, J.S. and K.S. were speaking privately in

Mother's home after the rest ofthe family had gone to sleep. J.S. initiated a conversation with K.S.

by asking if anyone had ever touched her. K.S. responded by asking J.S., "Why? Has someone

touched youT Ultimately the girls agreed to count to three and say the name of the person who

touched them simultaneously. They both said,"Dad,"

J.S. proceeded to detail to her sister the sexual abuse to which she had been subjected to by

Defendant. K.S. then ran upstairs to wake Mother. When rnother awoke,she asked,"What is itr to

which ICS, replied "I told you. He touched her too,and it's way worse than mine," On the morning

of July 20,2011, a devastated and hysterical Mother called to speak with Trooper Teagarden about

J.S.'s disclosures, Unable to reach her personally she left a distraught voicemail.107 The two finally

spoke on July 21, 2011, and agreed that J.S. should submit to another forensic interview the very

next day)08

On July 22, 2011, Jennifer Lytton conducted the second forensic interview of LS. at the

Children's Advocate Center:09 J.S. began by apologizing for lying in her previous forensic

interview, and then she made disclosures consistent with her testimony at tria1,11° Trooper

Teagarden observed the interview through a two-way mirror.111 At its conclusion,the Trooper went

directly back to the State Police barracks where she composed a criminal complaint against

106 TT Vol. 4, p, 15.
107 TT Vol. 4, p. 12.
108 TT Vol, 4, p. 14.
109 TT Vol. 4, p. 15-16.
110 TT Vol. 4, p. 16
111 TT Vol. 4, p. 16-17.
17
 Circulated 11/19/2014 08:55 AM

Defendant and application for search warrant for Defendant's residence at 12 Terry Lane,

Washington, Pennsylvania)12 Defendant was arrested and the search warrant was executed that

same day. 113 The police seized several different items capable of containing images, including

cameras,a cell phone(on defendant's person), digital memory cards, and an XBOX 360)14 Searches

of those items ultirnately revealed no pornographic hnages. The formal charges were filed against

Defendant on July 22,2011.

After the close of the evidence, closing arguments and following deliberations, the jury

returned a verdict of guilty on the charges of:

1. Rape of a Child less than 13 years of age, a Felony of the 1 si degree, with

respect to the victim IS.;

2, Rape of a Child less than 13 years of age, a Felony of the 1 st degree, with

respect to the victim LS.;

3. Involuntary Deviate Sexual Intercourse with a child less than 13 years ofage,

a Felony of the 1 degree, with respect to the victim J.S.;

4. Involuntary Deviate Sexual Intercourse with a child less than 13 years ofage,

a Felony ofthe 1sl degree, with respect to the victim J.S.;

5. Involuntary Deviate Sexual Intercourse with a child less than 13 years ofage,

a Felony of the 1' degree, with respect to the victim IS.;

6. Involuntary Deviate Sexual Intercourse with a child less than 13 years ofage,

a Felony of the 151 degree, with respect to the victim J.S.;

112 TT Vol. 4, p. 18.
113 TT Vol. 3, p. 93,
114 TT Vol. 3, p. 101.
18
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7. Aggravated Indecent Assault ofa child less than 13 years ofage, a Felony of

the 1st degree, with respect to the victim LS.;

8. Sexual Assault, with respect to the victim J.S.;

9, Sexual Assault, with respect to the victim J.S.;

10. Sexual Assault, with respect to the victim J.S.;

11. Sexual Assault, with respect to the victim J.S.;

12. Sexual Assault, with respect to the victim J.S.;

13, Statutory Sexual Assault, with respect to the victim J.S.;

14. Statutory Sexual Assault, with respect to the victim J.S.;

15. Statutory Sexual Assault, with respect to the victim J.S.;

16. Statutory Sexual Assault, with respect to the victim J.S.;

17. Statutory Sexual Assault, with respect to the victim J.S.;

18. Incest, a Felony of the 2" degree, with respect to the victim IS.;

19, Indecent Assault on a Person less than 13 years of with respect to the victim

J.S.;

20. Corruption of Minors, a Misdemeanor of the 14 degree with respect to the

victim IS.;

21. Aggravated Indecent Assault of a child less than 16 years of age, a Felony of

the IS'degree, with respect to the victim ICS.;

22. Incest, a Felony of the 2" degree, with respect to the victim K.S.;

23. Indecent Assault on a Person less than 13 years of with respect to the victim

K.S.;

19
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24. Corruption of Minors with respect to the victim K.S.;

25. Endangering the Welfare of Children,a Felony ofthe 3r 1 degree, with regard

to both victims J.S. and K.S.II5

OPINION

The Defendant raises four issues for the Court's consideration in this direct appeal from

the jury verdict and the Trial Court's Judgment of Sentence, Defendant first challenges the Trial

Court's decision to exclude the testirnony and records of certain professional counselors with

whom the victims had consulted prior to their respective initial disclosures ofsexual abuse

perpetrated upon them by the Defendant. Specifically, the Defendant argues that the Court

erroneously excluded the following evidence and/or witness testimony, as identified in the

Motion in Limine:

21. [T]he defense respectfully requests to introduce the following evidence

and/or testimony at trial:

B. R. Maureen Myers, Esquire, Child Custody Conference
Officer;
C. Steve Miller of Behavioral Dynamics, inc.;
D. Geith Shahoud, M.D. or an R.N. frorn Southwood
Psychiatric Hospital;
E. Jeanne Hepburn, LCSW,of Cornerstone Care;
F. Melissa Mansberry of Washington Communities MH/MR;

H. June 28, 2011 Protection from Abuse Petition."

With regard to evidentiary challenges, the admissibility of evidence at trial is at the

discretion of the trial court and only a showing of an abuse of that discretion, and resulting

115 The Criminal Information filed in this matter contained two counts of Endangering the Welfare of Children, but
due to an inadvertent Omission only one count was included on the verdict slip submitted to the jury. Therefore, the
Court sentenced the Defendant on a single count of Endangering the Welfare of Children.
20
 Circulated 11/19/2014 08:55 AM

prejudice, constitutes reversible error.116 An abuse of discretion is not rnerely an error of

judgment, but is rather the overriding or misapplication of the law, or the exercise ofjudgment

that is manifestly unreasonable, or the result of bias, prejudice, or partiality, as shown by

the evidence of record.111 A Trial Court's determination of the admissibility of evidence is to be

disturbed on appeal only where there is an abuse of discretion. "An abuse ofdiscretion may not

be found merely because an appellate court rnight have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality, prejudice, bias, or or such

lack of support so as to be clearly erroneous."1" Typically, all relevant evidence, i.e., evidence

which tends to make the existence or non-existence of a material fact more or less probable, is

admissible, subject to the prejudice versus probative value weighing which attends all decisions

upon adrnissibility.

The Defendant's stated purpose for calling the witnesses identified above was:

Despite their current claims that they endured ongoing sexual assaults by
the defendant for several years prior to said treatment and continuing
during the relevant times of said treatment, neither alleged victirn made
any disclosure to any professional by whom they were treated at said
providers.

14. The defense requests to introduce evidence of such at trial, including:

A. the dates of treatrnent;
B. a description of the conditions of treatment;
C. testimony about the content of any discussion related to
sexual abuse history, or of the ability of the alleged
victim(s) to rnake such a disclosure;
D. statements by the alleged victirn(s) with respect to sexual
abuse, and any other prior inconsistent statements; and

116 Commonwealth v. Serrano, 61 A.3d 279, 290(Pa. Super. 2013); citing Commonwealth v. Glass, 50 A.3d 720
(Pa. Super. 2012).
117 M
118 M.
21
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E. any testimony necessary to respond to cross-examination by
the Commonwealth and/or the Commonwealth's case-in-
chief.

15. Juvenile K.S. also met privately with R. Maureen Myers, Esquire, Child
Custody Conference Officer at a 2010 child custody hearing, at which she
failed to rnake any disclosures about sexual assault by the Defendant."119

With respect to sub-paragraphs 21,C. through F., the Court ruled during the June 19, 2012

hearing on Defendant's Motion in Litnine that such evidence was inadrnissible in the absence of

a waiver of the statutory psychologist-patient testirnonial privilege.12° The statute states in

pertinent part:

No psychiatrist or person who has been licensed ... to practice psychology shall be,
without the written consent of his client, examined in any civil or criminal matter as to
any information acquired in the course of his professional services in behalf of such
client. The confidential relations and communications between a psychologist or
psychiatrist and his client shall be on the same basis as those provided or prescribed by
law between an attorney and client. 121

Moreover, at trial, both victirns conceded that they each had declined to make any

disclosure ofabuse prior to their respective disclosures in June and July of2011, despite the fact

that there had been multiple opportunities to disclose to various counseling professionals. K.S.

went so far as to say that even if asked directly about sexual abuse by a counselor prior to her

disclosure to her mother, she would not have disclosed for fear of losing her relationship with her

father. The Defendant's stated purpose for the testimony of the counselors was to demonstrate

that, despite rnultiple appropriate opportunities to disclose the abuse while such abuse was still

ongoing, the victims did not do so, The Trial Court found that, even supposing such testimony

not privileged, it was duplicative ofthe victims testirnony, and therefore its exclusion worked no

119 See Defendant's Motion in Lhnine (April 3,2012).
120 42 Pa.C.S.§ 5944
22
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prejudice on the Defendant. Furthermore, the Trial Court found that parading several rnental

health professionals before the jury could result in unfair prejudice to Commonwealth by raising

an unsupported inference that the victims were mentally unstable.122 Ultimately, because the

testimony Defendant sought to introduce was privileged, was not being contested and was merely

cumulative ofthe testirnony of the victims, the Trial Court cornrnitted no error by excluding such

testimony.

As for the testirnony ofChild Custody Conference Officer Myers, even if such testimony

is not covered by an applicable privilege, Ms. Myers sworn testimony that K.S. did not disclose

sexual abuse to her would be merely curnulative ofthe victim's admission, and of extremely

lirnited probative value.

As to sub-paragraph 21.H. of Defendant's Motion in Limine, the Court granted

Defendant's rnotion as to the Petition for Protection from Abuse Order during the June 19, 2012

hearing on Defendant's motion, provided that it was not used to impeach the victims, as they had

not created the docunient. Additionally, a review of the record indicates that during trial the Trial

Court, in fact, admitted that Petition as Commonwealth Exhibit 2, and, therefore, the Defendant's

identification of this issue as a component in issue nurnber 1 of the Concise Statement is

rneritless.123

Defendant's second challenge is that the Trial Court erred in limiting the testirnony of

witness David Rundquist, Esquire, who served as counsel for Defendant in the custody and
61v +-)1 e
protection for abuse proceedings between Defendant andtbiniaset The Court permitted

Attorney to testify as to certain aspects of those proceedings, such as their existence, the fact that

121 Id.
122 Pa.R.E. 403
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the proceedings were contested, how and by whorn those proceedings were instigated, and the

timeline of the custody proceedings as it related to the facts underlying Defendant's conviction.

The Court declined to allow Attorney Rundquist to testify to as to the details of the parties'

contentions and strategies in connection with the custody and protection from abuse proceedings,

or his own opinion regarding the basis for animosities between the parties.

Evidence is relevant if it tends "to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without the

evidence."124 But,lajithough relevant, evidence may be excluded Hits probative value is

outweighed by the danger of unfair prejudice, confusion ofthe issues, or misleading the jury, or

by considerations of undue delay, waste of thne, or needless presentation of cumulative

evidence."325 The particulars ofthe custody litigation between Defendant and Mother were of

minimal relevance to the matters before the jury regarding the victims allegations of abuse by

the Defendant, such that any probative value to such evidence was so limited as to be outweighed

by concerns of confusion of the issues, diversion from the matter at hand, undue delay, and waste

oftime.

Defendant's third challenge is that the Trial Court erred in admitting testimony by the

victims as well as other Commonwealth witnesses as to certain "prior bad acts" by the

Defendant. Specifically, Defendant refers to testimony that (1)the Defendant possessed or made

viewable pornography, including child pornography;(2) the Defendant indirectly permitted the

consumption of alcohol by minors in his trailer;(3) the Defendant provided K.S. with marijuana;

and,(4) that Defendant requested that K.S. expose her breasts to hirn.

123 TT Vol. 4, pp. 44-45.
124 Pa.R.E. 401.
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A long-accepted exception to the general rule of adrnissibility, which is reflected in Rule

404(b)(1) of the Pennsylvania Rules of Evidence, states that le]vidence of other crirnes, wrongs,

or acts is not admissible to prove the character of a person in order to show action in conformity

therewith." However, evidence of bad acts is adrnissible pursuant to our rules of evidence to

prove motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of rnistake

or accident.126 This list is non-exclusive.127 Indeed, prior to the codification of our rules of

evidence, the Supreme Court of Pennsylvania set forth the following list of exceptions to the

general prohibition against bad acts evidence:

(1) motive;(2)intent;(3)absence of mistake or accident;(4)a common scherne,
plan or design embracing cornrnission of two or rnore crimes so related to each
other that proof of one naturally tends to prove the others;(5) to establish the
identity of the person charged with the commission of the criine on trial where
there is such a logical connection between the crimes that proofofone will
naturally tend to show that the accused is the person who committed the other;(6)
to impeach the credibility of a defendant who testifies in his trial;(7)situations
where defendant's prior criminal history had been used by him to threaten or
inthnidate the victirn;(8)situations where the distinct crimes were part of a chain
or sequence of events which formed the history of the case and were part of its
natural developrnent(sometimes called "res gestae" exception).128

Our Supreme Court has consistently recognized that adrnission of distinct crirnes rnay be

proper where it is part of the histoiy or natural development ofthe case or when relevant to

furnish the context or complete story ofthe events surrounding a crime, Le., the res gestae

exception.1"

125 NO:LE. 403
126 Pa.R.E. 404(b)(2).
127 See Com. v. Brown, 52 A.3d 320, 325-326 (Pa.Super. 2012); Commonwealth v. Reese, 31 A.3d 708, 723
(Pa.Super.2011)(en bane).
128 Commonwealth v. Bilk, 521 Pa. 168,555 A.2d 835,840(1989)(citing Connnonwealth v. Lark, 518 Pa. 290,
543 A.2d 491,497(1988)).
129 Commonwealth v. Sherwood,603 Pa. 92,982 A.2d 483,497(2009); Lark,supra at 497; Commonwealth v.
Brown, 462 Pa. 578, 342 A.2d 84(1975); Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782(1964);
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Here, each of the so-called "prior bad acts" is relevant to providing the full context ofthe

Defendant's sexual abuse of the victims, and specifically the statements made by witnesses other

than the victims were directly corroborative of the victims testimony. Such testimony is

admissible to demonstrate the nature of relationship between the victims and Defendant, and that

their relationship was such that the charged conduct could have occurred.13° The multiple

allegations of pornography and/or child pornography on the Defendant's computer is especially

relevant to understanding victim K.S.'s motivation and decision to finally disclose the details of

her sexual abuse to her mother. K.S. testified that after seeing certain images of what she

believed to be child pornography on her father's computer,including an image that appeared to

have been taken inside Defendant's trailer, she feared that her younger sister might be victimized

if she did not take action. After suffering silently through years of abuse, K.S. decided to speak

up after seeing pornography on her father's computer. The testimony of witnesses other than

K.S. was of probative value to the jury in at least two ways:(1) it described the inappropriate,

vulgar and permissive environment in which the crimes took place, and in which victims J.S, and

K.S. lived for years, such that they believed that the sexual abuse by their father was "normal";

and,(2)it conoborated the claims of K.S. as to her observations of pornography in Defendant's

home.

Commonwealth v. Williams, 307 Pa. 134, 160 A.602,607 (1932); Commonwealth v. Dorsi, 285 Pa. 232, 132 A. 168
(1926); Connnonwealth v. Coles, 265 Pa. 362, 108 A. 826 (1919); Commonwealth v. Hoines,257 Pa. 289, 101 A.
641 (1917); Swan v. Connnonwealih, 104 Pa. 218(1883); Goersen v. Connnomvealth,99 Pa. 388 (1882); Brown v.
Commonwealth, 76 Pa. 319(1874); Hopkins v. Commonwealth,50 Pa.9(1865).
130 See Commomvealth v. Kubiae, 379 Pa.Super. 402, 550 A.2d 219(1988)(admission of testimony at trial for
corrupting morals through oral sexual intercourse that defendant and his wife allowed victim and another foster child
to smoke marijuana and drink alcohol was not abuse of discretion, where testimony was relevant to demonstrate
nature of relationship between victim and defendants as testimony tended to show that their relationship was such
that charged conduct could have occurred).
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The testimony regarding the Defendant's permissive attitude towards the consumption of

alcohol and marijuana by his daughters, his niece and other minors also directly describes the

circumstances ofthe sexual abuse of the victims. Specifically, K.S. testified that on a New
6oThortat.A.
Year's Eve at the family home ,Defendant and victim K.S. were both

intoxicated after drinking heavily. When K.S. retired to her bedroom to sleep that evening,

Defendant followed her upstairs and touched her vagina with his hands as she tried to go to sleep.

Furthermore, K.S. testified that Defendant's lax attitude towards alcohol and marijuana along

with his provision of the same to her was a major factor in her choice to move in with her father

after her parents separated, despite the fact that she knew that doing so would expose her to

further sexual abuse at his hands.

In Commonwealth v. Kublac, the Superior Court affirmed the Trial Court's decision to

admit testimony that Defendant and his wife permitted the use of marijuana and alcohol by the

victim foster child as well as another foster child in their home,for the purposes of establishing

the nature of the victim's relationship with the Defendant and providing relevant context,

showing that the alleged acts of oral sexual intercourse could have occurred.I31 Similarly, the

Trial Court here exercised its sound discretion.to admit the challenged testimony of the prior bad

acts to give a more complete understanding of the nature of the Defendant's relationship with his

daughters and the character of the home environment Defendant fostered and maintained.

Tiffany Lyle's testirnony that Defendant asked K.S. to expose her breasts to him in Ms.

Lyle's presence is again adrnissible as relevant on res gestae grounds. Ms Lyle's testiinony

corroborated K.S.'s testimony of the same event, which supports the critical issue of the victim's

131 Kubiac,supra.
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credibility, and provided additional context to the inappropriate environment and exploitative

relationship with the victims that Defendant fostered.

Each of the prior bad acts, the admission of which Defendant now challenges, were

relevant facts for the jury to consider in assessing the testimony of the minor victims that

Defendant abused them routinely for several years. The Defendant is not entitled to a trial in a

vacuurn. As in Kubiac, the Trial Court has exercised its discretion to permit the introduction of

evidence of prior bad acts that tend to show the Defendant's behavior and his relationships to his

daughters was such that the victims testimony that Defendant subjected them to years of

frequent sexual abuse could indeed have occurred.132 Crhnes ofsexual abuse and sexual assault

are especially susceptible to a dearth of direct evidence for presentation to a jury, as much of the

criminal activity occurs behind closed doors. Here, where the victims are children and the

perpetrator is their father, the emotional and power dynarnics of that relationship have further

obfuscated the matter. Ultimately, the jury was faced with evaluating the victims' testimony of

the Defendant's most heinous actions against the Defendant's denials. The adrnission of third-

party testimony to specific instances of inappropriate behavior to which the victims themselves

have testified at trial allowed the jury to assess the victims' testirnony with greater confidence,

since much of it was by its nature uncorroborated. Moreover, the prior bad acts evidence

complained of pales in comparison to the horrific sexual acts for which Defendant was on trial.

Hearing this testimony of Defendant's prior bad conduct did not so inflame the passions ofthe

jury that they could not reach a fair verdict.

132 Id. at 409-412
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Finally, the Defendant avers that the court abused its discretion in the imposition

of an excessive sentence on the Defendant by sentencing the Defendant to an aggregate of

sixty (60) years to one hundred and twenty (120) years ofincarceration.

42 Pa.R.C.P. 9781 addresses appellate review ofsentences, This rule states, in relevant

part:

(c) Determination on appeal. — The appellate court shall vacate the sentence and
remand the case to the sentencing court with instructions if it finds:
(1)the sentencing court purported to sentence within the sentencing
guidelines but applied the guidelines erroneously;
(2)the sentencing court sentenced within the sentencing guidelines but the
case involves circumstances where the application of the guidelines would
be clearly unreasonable; or
(3)the sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing
court.1"

In the present case, the total aggregate sixty (60)to one hundred and twenty(120) year

sentence imposed by the Court was within the sentencing guidelines and in accordance with the

statutory penalties involved. In Commonwealth v. Wagner, the Superior Court explained that a

claim ofexcessiveness of a sentence does not raise a substantial question,justifying allowance of

appellate review, where the sentence imposed is within the statutory 1innits.134 Moreover, the

Superior Court has held that an allegation that a sentence on its face was unreasonable and

excessive under the circumstances does not raise a substantial question as to the appropriateness

of the sentence.135

133 42 Pa.C.S.A. § 9781.
134 Commonwealth v. Ifiergner, 702 A.2d 1084, 1086 (Pa. Super. 1997).
135 Commonwealth v. Trimble, 615 A.2d 48(Pa. Super. 1992).
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To the extent the Superior Court decides to review the propriety of the sentence, the Trial

Court submits that the total sentence is within the sentencing guidelines. As stated in

Commonwealth v. Walls:

[T]he proper standard of review when considering whether to affirm the
sentencing court's determination is an abuse of discretion ... an abuse of
discretion may not be found merely because an appellate court might have reached
a different conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias or ill-will, or such lack of support so as to be clearly
erroneous.136

A sentence is deemed "unreasonable," "either upon review of the four elements contained

in § 9781(d) or if the sentencing court failed to take into account the factors outlined in 42

Pa.C.S. § 9721(b)." 137

42 Pa.C.S. § 9781(d) states in relevant part:

(d)Review ofrecord.--ln reviewing the record the appellate court shall have regard for:

(1)The nature and circumstances ofthe offense and the history and characteristics of
the defendant.
(2)The opportunity of the sentencing court to observe the defendant, including any
presentence investigation.
(3)The findings upon which the sentence was based.
(4)The guidelines promulgated by the commission."'

Following his conviction, the Defendant was given notice by the Cornmonwealth of his

post-conviction rights. The Commonwealth invoked the mandatory sentences under 42

Pa.C.S.A. § 9718, titled Sentences for Offenses Against Infant Persons, on the charges of two (2)

counts of Rape ofa Child Less than 13 Years of Age,four(4) counts ofInvoluntary Deviate

Sexual Intercourse a Child Less than 13 Years of Age,and Aggravated Indecent Assault of a

136 Connnonivealth v. Walls, 926 A.2d 957,961 (Pa. 2007); citing Gra(?),v. Frito—Lay, Inc., 576 Pa. 546, 839 A.2d
1038, 1046 (2003).
137 Danlet, 30 A.3d at 497; citing Connnonwealth v. Walls, 926 A,2d 957 (Pa, 2007).
138 42 Pa.C.S. § 9781(d).
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Child Less than 13 Years of Age, each of which offenses has a mandatory minirnum sentence of

ten (10) years, and Aggravated Indecent Assault of Child Less than 16 Years of Age, which

offense has a mandatory minimum sentence offive(5) years. The Trial Court sentenced the

Defendant to the mandatory minimum sentence on both ofthe counts of the charge of Rape ofa

Child Less than 13 Years of Age, on three(3)of the four(4)counts of the charge ofInvoluntary

Deviate Sexual Intercourse a Child Less than 13 Years of Age,139 the charge of Aggravated

Indecent Assault of a Child Less than 13 Years of Age, and the charge of Aggravated Indecent

Assault of Child Less than 16 Years of Age. The Trial Court imposed consecutively the

sentences for Rape ofa Child Less than 13 Years of Age, Invohmtary Deviate Sexual Intercourse

a Child Less than 13 Years of Age, and Aggravated Indecent Assault of Child Less than 16 Years

of Age, while the ten (10) year sentence for Aggravated Indecent Assault of a Child Less than 13

Years of Age was irnposed concurrently to the other sentences.

For each of the charges of which the Defendant was convicted that neither merged with

other charges nor carried mandatory minimums,the Trial Court sentenced the Defendant within

the standard range of the sentencing guidelines. The Trial Court's sentence was reasonable and

not the result of any bias, prejudice or ill will. Accordingly, the Trial Court did not abuse its

discretion.

In Commonwealth v. Moury the Superior Court of Pennsylvania held that the,

Mrnposition of consecutive, rather than concurrent, sentences rnay raise a
substantial question in only the most extreme circumstances, such as where the

139 On the third count of Involuntary Deviate Sexual Intercourse with a Child Less than the Age of 13, the Trial
Court imposed no further sentence, finding that it merged with the second count of Rape ofa Child Less than the
Age of 13 for sentencing purposes.
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aggregate sentence is unduly harsh,considering the nature ofthe crimes as the
length ofimprisonrnent.14°

In addition, the sentencing court has broad discretion in determining the length of sentence

because,"the sentencing court is in the best position to determine the proper penatty for a

particular offense based upon an evaluation of the individual circumstances before it. 141

As set forth on the record, after taking into account the sentencing guidelines, and after

consideration of the nature ofthe offenses and the impact on the victim and cornmunity as

required under 42 Pa,C.S. § 9721(b), the Trial Court imposed Defendant's sentence of a total of

sixty (60) to one hundred and twenty (120) years, squarely within the sentencing guidelines, and,

therefore, Defendant's sentence was appropriate, and not manifestly unreasonable. The Trial

Court submits that for the above-stated reasons it did not abuse its discretion in imposing

Defendant's sentence.

For the reasons set forth above, the Trial Court respectfully submits that the verdict ofthe

jury should be upheld, and that the Judgment of Sentence should be affirmed,

DATE: BY THE C RT:

140 Connnonwealth v. Monty,992 A.2d 162, 170(Pa, Super. 2010); citing Commonwealth v. Pass 914 A.2d 442,
446-47(Pa. Super. 2006).
141 Walls, 926 A.2d at 961; quoting Commonwealth v. Ward, 524 Pa. 48, 568 A.2d 1242, 1243 (1990).
32