J-A12045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEN ANDREW KOVALESKI,
Appellant No. 1117 MDA 2014
Appeal from the Judgment of Sentence entered July 2, 2014,
in the Court of Common Pleas of Lackawanna County,
Criminal Division, at No(s): CP-35-CR-0002000-2012
BEFORE: BOWES, DONOHUE, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED APRIL 30, 2015
Ken Andrew Kovaleski (“Appellant”) appeals from the judgment of
sentence imposed after a jury convicted him of rape and related charges.1
We affirm.
The trial court summarized the pertinent facts as follows:
The incidents were alleged to have begun in June of
2011. During the evening, the victim, [N.K.] was asleep in
her bedroom. [She was fifteen years old at the time.] At
some point, she awoke to find her adoptive father,
[Appellant], covering her mouth with his hand. [Appellant]
then told [N.K.] to be quiet and proceeded to kiss and
touch her all over her body. After taking [N.K.’s] pajama
shorts off, the victim testified that [Appellant] performed
oral sex on her, penetrated her vagina with his fingers,
and had sexual intercourse with her, despite her
whimpering in pain.
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1
18 Pa.C.S.A. § 3121.
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Despite only performing intercourse on one occasion,
[Appellant] continued to sexually abuse [N.K.] periodically
over the course of the next year. Namely, [Appellant]
would perform oral sex on [N.K.], penetrate her vagina
with his fingers, or masturbate in front of her. Whenever
[N.K. threatened to disclose the abuse, [Appellant]
reprimanded her, telling her no one would believe her due
to his close relationship with various prosecutors and
police officers throughout the county. [Appellant was a
licensed attorney and had been employed in the
Lackawanna County Public Defender’s Office.] He also
convinced her that no one would believe her since she had
not disclosed the abuse after the initial assault, and there
would be no physical evidence remaining from that one
and only instance of intercourse to support her allegation.
At some point in July 2012, upon learning that the
victim had snuck out of their Jessup, PA residence in the
middle of the night to meet a boy from school and had
engaged in sexual acts with this boy, [Appellant]
threatened her and grabbed her throat. The day after this
altercation, while at a golf course in Scott Township with
[Appellant] and his wife, [], and their other children, [N.K.]
ran away and hitchhiked to her sister’s house in Forest City
and disclosed the abuse to her sister. Upon hearing of the
abuse, [N.K.’s] sister, [R.M.], took her to the Forest City
Police Station to report the abuse. When [N.K.] and her
sister were walking toward the police station, they
observed [Appellant] and his wife there as well. After a
scuffle at the police station between [N.K.] and
[Appellant’s] wife during which [Appellant’s] wife tackled
[N.K.] to the ground, [Appellant] and his wife were sent
home by the police, and [N.K.] was placed in emergency
foster care with her aunt and uncle in Montrose. Pursuant
to the police investigation, [N.K.] was interviewed and
examined at the Children’s Advocacy Center (“CAC”) in
Scranton. [Appellant] was arrested on or about July 17,
2012.
Trial Court Opinion, 9/2/14, at 2-4 (citations and footnote omitted).
Prior to trial, the trial court granted the Commonwealth’s motion in
limine, which sought to present the testimony of M.B., a then twenty-nine
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year old woman who later testified that Appellant sexually assaulted her
when she was fifteen.2 Following a two-day trial, on February 26, 2014, a
jury convicted Appellant of rape and related charges. On July 2, 2014, the
trial court accepted the parties’ stipulation that Appellant was a sexually
violent predator, and the court sentenced him to an aggregate term of
twenty-one to forty-two years of imprisonment. This timely appeal followed.
Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues:
1. Whether the trial court erred and abused its discretion
in allowing the Commonwealth to introduce [] evidence of
other alleged crimes, wrongs or acts pursuant to [Pa.R.E.]
404(B).
2. Whether the trial court erred and abused its discretion
in not allowing evidence to be introduced with regard to
psychological medication prescribed to the [victim].
3. Whether the trial court erred and abused its discretion
by not allowing Appellant to call a medical professional
who had treated the [victim] and would testify to a lack of
indications for sexual assault.
Appellant’s Brief at 3.
Each issue raised by Appellant challenges the trial court’s ruling on
evidentiary matters. Our standard of review is well settled:
Appellate courts typically examine a trial court’s decision
concerning the admissibility of evidence for abuse of
discretion. An abuse of discretion may not be found merely
____________________________________________
2
Appellant was never arrested or criminally charged in relation to this
incident.
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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.
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/probative value weighing which attends all
decisions upon admissibility. See Pa.R.E. 401; Pa.R.E.
402[.]
Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007).
After careful review of the record and pertinent case law, we conclude
that the Honorable Margaret A. Bisignani Moyle has prepared a thorough and
well-reasoned opinion in which she explains her evidentiary rulings, while
acknowledging the potential prejudice and fairness considerations for both
Appellant and the Commonwealth.
More specifically, with regard to Appellant’s first issue, our review of
the record and case law supports Judge Bisignani Moyle’s decision to admit
the evidence of Appellant’s prior assault despite its remoteness. See e.g.,
Commonwealth v. Arrington, 86 A.3d 831, 841-845 (Pa. 2014)
(concluding that the probative evidence of the defendant’s prior crimes
toward ex-girlfriends to show common scheme to control through violence
and intimidation outweighed prejudicial effect to the defendant from its
admission). Our conclusion is further supported by the fact that Judge
Bisignani Moyle thrice warned the jury with regard to the limited use of this
evidence. See id. (explaining that the law presumes a jury will follow the
instructions of the court).
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As to Appellant’s remaining issues, our review of the record supports
our determination that Judge Bisignani Moyle properly weighed the potential
of prejudice to both parties and reasonably dealt with these concerns in
limiting Appellant’s cross-examination of the Commonwealth’s medical
witness, and in arriving at a stipulation regarding Appellant’s proposed
medical witness. This is especially true, given the sensitive inquiry regarding
a victim’s psychiatric treatment. See generally, Commonwealth v.
Boich, 982 A.2d 102 (Pa. Super. 2009) (en banc).
A criminal defendant is entitled to a fair trial, not a perfect one.
Commonwealth v. Noel, 14 A.3d 1156, 1169 (Pa. 2014) (citation
omitted). Although Appellant was not able to present his defense as
completely as he wished, after reviewing the record and pertinent case law,
we conclude that in her September 2, 2014 opinion, Judge Bisignani Moyle
correctly explains why Appellant’s claims do not entitle him to relief. We
therefore adopt Judge Bisignani Moyle’s opinion as our own in affirming
Appellant’s judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2015
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