Com. v. T.S.N.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S60009-15



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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J-S60009-15



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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J-S60009-15



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.



                                           -4-
J-S60009-15



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).



                                           -5-
J-S60009-15



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.




                                     -6-
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




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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