J-S60009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
T.S.N.,
Appellant No. 3187 EDA 2014
Appeal from the Judgment of Sentence Entered October 20, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001030-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 02, 2015
Appellant, T.S.N.,1 appeals from the judgment of sentence of an
aggregate term of 8 to 16 years’ incarceration, imposed after he was
convicted of two counts each of involuntary deviate sexual intercourse
(IDSI) and aggravated indecent assault (AIA), as well as one count of
corruption of minors (COM). Appellant contends that the trial court abused
its discretion by admitting certain evidence, and by denying Appellant’s
motion for a mistrial when the Commonwealth made improper comments in
____________________________________________
1
Because this is a sexual assault case involving a minor victim who shares
the same last name as Appellant, we will use Appellant’s initials to protect
the victim’s identity. We have also redacted from the trial court’s opinion
Appellant’s name, the victim’s birthdate, and the names of the victim’s
mother and father.
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its closing argument. He also maintains that the jury’s verdict was contrary
to the weight of the evidence. After careful review, we affirm.
The trial court briefly summarized the facts of this case, as follows:
On November 12, 2012, a Criminal Complaint was filed
based on allegations that [Appellant], [T.S.N.], sexually
assaulted his fourteen year-old half-brother.[2] The incident
came to the attention of law enforcement after the Victim, his
mother and his father appeared at the Chester-Crozer Medical
Center (CCMC) on October 29, 2012. The Victim’s mother
reported her suspicion that her son had been assaulted by his
older half-brother. A sexual assault examination was performed
at the hospital and hospital personnel reported the incident to
the City of Chester Police Department.
Trial Court Opinion (TCO), 3/13/15, at 1.
A four-day long jury trial was conducted in July of 2014, at the close of
which Appellant was convicted of IDSI by forcible compulsion, where the
victim was less than 16 years old; IDSI of an unconscious person, where the
victim was less than 16 years old; AIA without consent, where the victim is
less than 16 years old; AIA of an unconscious person, where the victim was
less than 16 years old; and COM. After the verdict, Appellant’s counsel
orally moved for extraordinary relief under Pa.R.Crim.P. 704(B), which the
trial court denied. See N.T. Trial, 7/18/14, at 147-148.
On October 20, 2014, the court conducted Appellant’s sentencing
hearing. At the start thereof, Appellant renewed his oral motion for
extraordinary relief, arguing that the jury’s verdicts were contrary to the
____________________________________________
2
Appellant was 18 years old at the time of the offenses.
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weight of the evidence. See N.T. Sentencing, 10/20/14, at 8-12. Again, the
court denied Appellant’s motion. Id. at 12. The court then imposed an
aggregate sentence of 8 to 16 years’ incarceration. Appellant filed a timely
notice of appeal, and also timely complied with the court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Herein, Appellant presents three issues for our review:
I) Whether the court erred in allowing the admission of
testimony by the victim’s parents and Officer John Kuryan
regarding an alleged prior contact of a presumably sexual nature
between Appellant and the victim that supposedly occurred
years before the incident in question where the prior allegation
lacked foundation and therefore lacked any probative value
whatsoever and served only to raise speculation in the mind of
the jury to the prejudice of Appellant[?]
II) Whether the court erred in failing to grant a defense motion
for [a] mistrial based on remarks made by the prosecutor during
his closing argument with respect to character traits of a sexual
assault victim which served only to prejudice the jury to the
extent that their verdict was based on something other than the
evidence presented[?]
III) Whether the court erred in denying Appellant’s motion for
extraordinary relief presented in the form of a claim that the
verdicts were against the weight of the evidence which was
raised orally at the sentencing hearing held in this matter[?]
Appellant’s Brief at 7-8 (unnecessary capitalization omitted).
We have reviewed the briefs of the parties, the certified record, and
the applicable law. Additionally, we have reviewed the thorough and well-
crafted opinion of the Honorable James P. Bradley of the Court of Common
Pleas of Delaware County. We conclude that Judge Bradley’s extensive
opinion accurately disposes of Appellant’s second and third issues on
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appeal.3 Therefore, regarding those two issues, we adopt Judge Bradley’s
opinion as our own.4
Judge Bradley’s opinion also provides a detailed and accurate
assessment of Appellant’s first issue, in which he contends that the court
erred by admitting evidence of a prior incident of sexual assault between
Appellant and the victim. See TCO at 16-19. However, we add a brief
discussion of Appellant’s argument that the prior bad act evidence lacked
sufficient foundation to be admissible. Appellant’s Brief at 18. In support of
____________________________________________
3
We note that in Appellant’s second issue, he challenges two comments
made by the prosecutor during his closing argument. The trial court
sufficiently addresses one of those comments (in which the prosecutor
remarked that “this is the way a real sex assault victim acts[,]”), essentially
concluding that it was harmless error. See TCO at 25-27; N.T. Trial,
7/18/14, at 58. On appeal, however, Appellant also takes issue with the
prosecutor’s reference to “the reactions of the ‘realistic’ teenage boy.”
Appellant’s Brief at 36; see also N.T. Trial, 7/18/14, at 51 (prosecutor’s
stating, “that is a realistic way that when a teenage boy gets raped by
another boy, that’s the way the disclosure would come out….”). While the
trial court does not specifically discuss this comment, we conclude that the
court’s harmless error analysis applies with equal force to the ‘realistic
teenage boy’ comment, and the combined impact of the two challenged
remarks did not prejudice Appellant to the extent that the jurors had a “fixed
bias and hostility toward [Appellant], thus impeding their ability to weigh the
evidence objectively and render a true verdict.” Commonwealth v. Judy,
978 A.2d 1015, 1020 (Pa. Super. 2009) (stating that “prosecutorial
misconduct does not take place unless the unavoidable effect of the
comments at issue was to prejudice the jurors by forming in their minds a
fixed bias and hostility toward the defendant, thus impeding their ability to
weigh the evidence objectively and render a true verdict”).
4
We note that Appellant raised two additional issues in his Rule 1925(b)
statement that he has abandoned herein. Thus, we do not adopt the trial
court’s discussion of those issues in its opinion. See TCO at 19-24.
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this claim, Appellant relies on Commonwealth v. Washington, 573 A.2d
1123 (Pa. Super. 1990), arguing that that case “stands for the proposition
that, first and foremost, before a ‘prior bad act’ will be deemed probative for
purposes of weighing the evidence against its prejudicial effect, the conduct
alleged must be prima facie established by competent proof that it actually
occurred.” Appellant’s Brief at 18.
Assuming, arguendo, that Appellant’s characterization of
Washington’s holding is correct, we disagree that the Commonwealth failed
to proffer prima facie proof of the prior incident of abuse between Appellant
and the victim. During the victim’s trial testimony, he indicated that this
was the second time Appellant assaulted him in this same manner. N.T.
Trial, 7/15/14, at 188. The victim explained that a prior incident with
Appellant occurred when the victim was approximately 10 years old. 5 Id. at
188-190. During that encounter, Appellant got on top of the victim while he
slept, but got off when the boys’ father walked in. Id. at 190. The boys’
father corroborated the victim’s testimony, stating at trial that he walked in
when the prior act of abuse was occurring and saw Appellant “on top of” the
victim. N.T. Trial, 7/16/14, at 125-126. While the father was hesitant to
____________________________________________
5
We note that the trial court states that the prior sexual assault occurred
two years before the present assault. See TCO at 18. However, the record
indicates the assaults occurred four years apart. See N.T. Trial, 7/15/14, at
189 (the victim stating the past incident occurred when he was “[a]round
the age of 10” and the present assault happened when he was 14 years old).
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elaborate on what, specifically, Appellant was doing to the victim, the father
did testify that what he saw “caused [him] concern[,]” and he removed the
victim from the room with Appellant. Id. at 126. The family did not allow
Appellant to be alone with the victim for years after. Id. at 152. The
Commonwealth also presented evidence that the victim told police officers
that during the prior incident of abuse, Appellant “had touched him,” and
“put it in [the victim’s] butt.” Id. at 286. Additionally, the victim told the
sexual assault nurse who examined him after Appellant’s current assault that
Appellant “has touched him inappropriately in his butt before.” Id. at 229.
We conclude that the victim’s statements to police and the sexual
assault nurse, along with the testimony of the victim and his father at trial,
was sufficient prima facie evidence that a prior incident of abuse occurred
between Appellant and the victim. Accordingly, Appellant’s claim that this
prior bad act evidence was inadmissible because it lacked foundation is
meritless. As for Appellant’s other assertions regarding the probative value
of this evidence, its prejudicial impact, and the remoteness of the prior
incident and the current assault, we conclude that the trial court sufficiently
addresses those claims in its opinion.
In sum, based on the rationale expressed herein, and the analysis
provided by the trial court in its opinion, we conclude that Appellant’s three
issues are meritless and affirm his judgment of sentence.
Judgment of sentence affirmed.
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J-S60009-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2015
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IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-23-CR-1030-2013
vs.
Ryan Grace, Esquire, on behalf of the Commonwealth
Patrick J. Connors, Esquire, on behalf of the Defendant
OPINION
Bradley, J. FILED:
On November 12, 2012 a Criminal Complaint was filed based on allegations that the
1, S, }-!.
Defendant, sexually assaulted his fourteen year-old half-brother. The incident
came to the attention of law enforcement after the Victim, his mother and his father appeared
at the Chester-CrozerMedical Center (CCMC) on October 29, 2012. The Victim's mother
reported her suspicion that her son had been assaulted by his older half-brother. A sexual
assault examination was performed at the hospital and hospital personnel reported the
incident to the City of Chester Police Department.
After a preliminary hearing Defendant was held for court and was charged in a thirteen
count Information with various offenses in connection with this incident. In May of 2013 trial
counsel filed a Notice of Alibi Defense, an omnibus pre-trial motion and a motion to compel
1
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discovery. On June 7, 2013 he entered his appearance and' a series of additional pre-trial
motions were filed. On June 14, 2013 fifteen pre-trial motions were filed including inter a!ia,
motions to quash and to dismiss based on allegations that the Victim was incompetent, a
motion to suppress the Victim's statements based on allegations that the Victim was a
habitual liar and therefore unreliable, a motion to compel a psychiatric evaluation of the
.J·~...
Victim, motions to exclude "prejudicial terms" at trial, to exclude testimony regarding
"behavioral indicators," "victim profile evidence," a motion to compel an interview with an
unnamed expert witness, and a motion to order to compel law enforcement to video-tape
interviews of the Victim and of witnesses. On June 20, 2013 additional motions were filed
including, inter a!ia, another motion to compel the Victim to be interviewed by an unnamed
expert witness, a motion to suppress the Victim's prior statements based on their inherent
unreliability, a motion to exclude all "uncorroborated" and/or "unsubstantiated" hearsay of
any state witness and a motion to preclude John Kuryan, an investigating police officer, and
Emily Donahee, a Children and Youth Services caseworker, from testifying as ''experts"
regarding their interviews of the alleged victim. Later, in July of 2013 additional motions
including a motion in limine that set forth a litany of boilerplate requests, the majority of
which were either not pertinent to the matter before the court or which included general
allegations concerning evidentiary matters that are routinely ruled on at trial were filed.
On July 13, 2013 the Court addressed the outstanding motions2• The vast majority
were denied without prejudice and trial counsel was directed to raise an objection during trial
1 Defendant was represented by Arik T. Ben-Ari, Esquire at his preliminary hearing. Trial counsel Andrew J.
Edelberg, Esquire entered his appearance on June 7, 2013 after filing the initial pre-trial motions.
2
The Court's rulings were memorialized in twenty-one Orders that were entered on August 1, 2013.
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should such an objection become appropriate as the trial proceeded. Additional repetitious
motions followed, and eventually, on July 15, 2014, the trial commenced with jury selection.
After four days, on July 18, 2014 Defendant's jury trial concluded. The jury returned
guilty verdicts on the following charges: involuntary deviate sexual intercourse by forcible
compulsion where the victim is less than sixteen years old3, involuntary deviate sexual
intercourse of an unconscious person where the victim is less than sixteen years old",
aggravated indecent assault without consent where the victim is less than sixteen years old",
aggravated indecent assault of an unconsciousperson where the victim is less than sixteen
years old" and corruption of minors7•
Trial counsel immediately made an oral motion for extraordinary relief pursuant to Rule
--·~st~!,.
704. This motion was denied and on July 25, 2014 trial counsel filed \\Defendant,~
l9Application for Leave to Argue Oral Motion for Extraordinary Relief." Essentiallythis
motion raised a challenge to the weight of the evidence and cited several allegations of trial
court error and sought a release on bail pending appeal. This motion was dismissed on
August 1, 2014 following which trial counsel moved to withdraw his appearance. On October
20, 2014 an aggregate sentence of eight to sixteen years of incarceration to be followed by
five years of probation was imposed.
Following sentencing, on October 21, 2014 trial counsel's motion to withdraw his
appearance was granted. The Court ordered a stay of all proceedings for twenty days to allow
Defendant the opportunity to obtain new counsel and directed the Office of the Public
3 18 Pa.C.S.A. § 3123(a)(l)
~ 18 Pa.C.S.A. § 3123(a)(3)
5
18 Pa.C.S.A. § 3125(a)(1)
6
18 Pa.C.S.A. § 3125(a)(4)
7
18 Pa.C.S.A. § 6301(a)(l)(i)
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Defender of Delaware County to interview him within forty-eight hours so that his
qualifications for representation by that Office could be determined. The Office of the Public
Defender was ordered to notify the court of its determination.
The Office of the Public Defender, on behalf of the Defendant, filed a timely Notice of
Appeal on November 18, 2014. Appellate counsel was ordered to file a Concise Statement of
Errors on Appeal and after an extension was allowed to enable new counsel time in which to
comply, on February 6, 2015 Defendant's "Statement of Matters Complained of on Appeal,"
was filed.
Defendant raises the following complaints on appeal:
1) The trial court erred when it allowed testimony from Officer John Kuryan and the
Victim's parents regarding prior sexual contact between the Defendant and the Victim
where the alleged contact was remote in time , lacked probative value and unduly
prejudiced the Defendant;
2) The Court erred when it excluded the testimony of crime scene detective Ernest
Minercha. Detective Minercha's testimony was probative in that Defendant attempted
to establish "that the investigation of the incident in question was entirely mishandled,"
and had direct bearing on the defense's ability to challenge the weight of the
Commonwealth's evidence before the jury;
3) The trial court erred by failing to grant the Defendant's motion for a mistrial based on
comments of the prosecutor during closing argument regarding the "character traits of
a sexual assault victim";
4) The trial court erred by failing to grant a motion in limine "to exclude the testimony of
the victim and all out-of-court statements made by the victim where the testimony and
statements were the direct result of unduly suggestive interviews conducted by Officer
John Kuryan and CYS Worker Emily Donahee,"
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5) The trial court erred by refusing to allow Defendant "the opportunity to present the
testimony of two DNA experts regarding the significance of the fact that," analysis of
material secured from the scene was inconclusive regarding identity; and
6) The trial court erred when it denied Defendant's oral motion for extraordinary relief
which challenged the weight of the evidence.
Weight of the Evidence
Addressing first Defendant's challenge to the weight of the evidence supporting the
verdict, although the Defendant did not file post-sentence motions, upon the jury's return of
the verdict trial counsel orally renewed his motion for judgment of acquittal. See N.T. 7/18/14
p. 147. This motion was denied and before sentencing, on October 20, 2014 trial counsel
again orally challenged the weight of the evidence. See N.T. 10/20/14 pp. 8-12.
Pennsylvania Rule of Criminal Procedure 607(A) provides that a claim that a verdict is against
the weight of the evidence must be raised before the trial court and recognizes an oral motion
made before sentencing, as a sufficient method to place the matter before the trial court,
thus preserving the issue for review on appeal. See Pa.R.Crim.P. 607; 720(B)(1)(c).
If the court determines that a verdict is against the weight of the evidence, a
defendant will be awarded a new trial. See Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
2000). A motion for new trial on the grounds that the verdict is contrary to the weight of the
evidence, concedes that there is sufficient evidence to sustain the verdict and therefore, the
trial court is under no obligation to view the evidence in the light most favorable to the verdict
winner. See Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). A
motion for a new trial based on a claim that the verdict is against the weight of the evidence
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is addressed to the discretion of the trial court. See Commonwealth v. Widmer, 744 A.2d at
751-52; Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). A new trial should not be
granted because of a mere conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Commonwealth v. Widmer, 744 A.2d at 752. The
role of the trial judge is to determine whether, notwithstanding all the facts, certain facts are
so clearly of greater weight that to ignore them or to give them equal weight with all the facts
is to deny justice. Commonwealth v. Clay, supra. "[A] new trial should be awarded when the
jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award
of a new trial is imperative so that right may be given another opportunity to prevail."
Commonwealth v. Clay, 64 A.3d at 1054-55. In reviewing a claim that the verdict is against
the weight of the evidence the court does not sit as the thirteenth juror. A trial judge must do
more than reassess the credibility of the witnesses and allege that he would not have
assented to the verdict if he were a juror. See Commonwealth v. Widmer supra.
The Victim in this matter is the younger half-brother of the Defendant. The brothers
("N\oi·hevi)
are four years apart in age and they share a father. The Victim lives with his mother1.... •
••• and his maternal grandmother. During the relevant time period the Defendant lived
(11FetfutY' II
with his paternal Grandmother. The boys' father, 1 lived in Chester with his
girlfriend and her children. Defendant was a frequent visitor to this home and it was in this
home that the incident that gave rise to these charges occurred.
~\o t1ncy·-
I n October of 2012- gave the Victim permission to visit his father at the
Fo.tvvor~-
h ome - sha red with his girlfriend. N.T. 7/16/14 pp. 149-152. At the time, the Victim
Mui~
was fourteen years old. -testified that normally she did not allow the Victim to
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spend time with his father because she did not allow her son to be near the Defendant. Id. at
tY1oth0'1~'>- ·
152. -prohibition arose after an incident occurred years earlier when the Victim
and the Defendant were at their paternal grandmother's home. At that time the Defendant
and the Victim were together visiting their fatherf $. ~ was out and when he
returned after a night of drinking he found the Defendant ''on top of" the Victim. N.T. 7/16/14
.~
pp. 124-26...... told the Defendant to "get off my son," and took the Victim upstairs to
sleep with him. Id. He told his then-girlfriend not to leave the boys alone and reported the
;o-~e->r
incident to j • Id. at 124-26; 151.
At trial the Victim testified that he had a "good" relationship with the Defendant and
that he "looked up to him." See N.T. 7/15/14 pp. 172-175. In October of 2012 his mother
fil_+h&~
allowed him to visit his father at - home. The Victim was at the home on Friday
. r:::tk!tt