J-S20023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD CROOKS
Appellant No. 1128 WDA 2015
Appeal from the Judgment of Sentence June 26, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002139-2014
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 11, 2016
Appellant, Donald Crooks, appeals from the judgment of sentence
entered on June 26, 2015, as made final by the denial of post-sentence
motions on July 8, 2015. We affirm.
The trial court summarized the facts and procedural history in this
matter as follows:
The charges against Appellant arose from a series of incidents in
which he sexually assaulted his daughter, K.L.C., [], from the
age of 7 until she was about 11 or 12.
The first incident occurred when K.L.C. was about 7 years old.
K.L.C. was visiting Appellant, her biological father, when he was
staying at a home where K.L.C.’s grandmother used to live.
After taking a shower, K.L.C. exited the bathroom and Appellant
told her to go to change in his room. Appellant came into the
room as K.L.C. was dressing, pulled out his penis through his
zipper and told her to suck on it. When K.L.C. told him no,
Appellant repeated the demand. K.L.C. said no again and
Appellant pushed her head toward his penis but K.L.C. pulled
away.
*Retired Senior Judge assigned to the Superior Court.
J-S20023-16
Appellant told K.L.C. to stay in the room and went to the kitchen
to get ice cream sandwiches. Appellant got an ice cream
sandwich for K.L.C.’s brother, who was watching Peter Pan in the
living room, and one for K.L.C., and returned to the room. After
K.L.C. finished eating the ice cream sandwich, Appellant took the
wrapper and rubbed the remaining ice cream on his penis.
Appellant told K.L.C. to lick the ice cream off. K.L.C. refused and
Appellant put his hands on the back of K.L.C.’s head and tried to
force it down towards his penis. K.L.C. pulled away and was
then left to dress in the bathroom.
Another incident occurred at K.L.C.’s aunt’s house, near the
Whippy Dip ice cream shop. K.L.C. and Appellant arrived at the
house after shopping together. Appellant retrieved the key from
above the door, let them into the house, and locked the door
behind him. K.L.C. went into the small “toy room” and Appellant
followed her in. K.L.C. sat down on the mattress on the floor
and Appellant sat beside her. K.L.C. was playing with a toy and
laid down and Appellant pulled a blanket over the two of them
and touched her clitoris over her underwear. At the same time,
K.L.C. saw Appellant moving his hands under the blanket and
believed Appellant was rubbing his own penis. K.L.C. told him to
stop, but he did not. After some time, Appellant stopped,
unlocked the front door, and replaced the key above the door.
One weekend during the summer, Appellant took K.L.C. to a
construction site in a van he borrowed from his friend John
Cooper. Appellant took K.L.C. into the woods in an area blocked
from view by a dirt pile and asked her to show him her breasts.
K.L.C. said no. When Appellant asked again and K.L.C. refused,
Appellant tried to forcibly make K.L.C. show him her breasts but
K.L.C. blocked him by crossing her arms over her chest.
Appellant then put K.L.C. in a “choker hold,” where he put his
arm around K.L.C.’s neck and squeezed to make her pass out.
K.L.C. passed out and when she woke up she was on the ground
and Appellant’s hand was in her pants, under her clothes,
rubbing her clitoris. K.L.C. pulled his hand out of her pants,
yelled at him and stood up. As K.L.C. tried to leave, Appellant
grabbed her arm and tried to put her in a “choker hold” again
but K.L.C. was able to break free, climb over the dirt pile, and
get to the van. Appellant drove K.L.C. to the home of her uncle,
Shawn Crooks.
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J-S20023-16
On another occasion, when K.L.C. was 11 or 12, Appellant tried
to touch K.L.C.’s breasts at John Cooper’s house after Appellant
took K.L.C. to Hot Topic at the mall to buy a bathing suit. K.L.C.
went to the bathroom to try it on and Appellant asked her to
come out so he could see. K.L.C. showed Appellant her bathing
suit and Appellant told her to go to the basement to the other
bathroom. Once K.L.C. and Appellant were in the basement,
Appellant asked K.L.C. to see her breasts. When K.L.C. said no,
Appellant untied the bathing suit behind K.L.C. neck. K.L.C. held
the suit up, but Appellant pulled at the suit and continued to ask
to see her breasts. Appellant then stopped and K.L.C. tied her
suit, went upstairs, and changed into street clothes.
On another occasion, when K.L.C. was 11 or 12, Appellant
brought K.L.C. to John Cooper’s storage building. Appellant told
K.L.C. to sit on a little wooden bed and to show him her breasts.
K.L.C. said no and crossed her arms in front of her chest.
Appellant stood in front of her, took his penis out of his pants,
and began to stroke it. Appellant asked K.L.C. to show him her
breasts a few more times and then said if she did not, that he
would put his penis in her vagina.
The first person K.L.C. told about the abuse was her stepsister,
[M.B.]. When K.L.C. ran away from home one night, [M.B.] told
K.L.C.’s mother, [C.B.], who then brought the information to the
police.
Appellant was charged with criminal attempt: involuntary
deviate sexual intercourse (“IDSI”) with a child, aggravated
indecent assault of a child, endangering the welfare of a child,
corruption of minors, indecent assault, indecent exposure and
IDSI with a child. On March 19, 2015, Appellant was found
guilty after a trial by jury of all charges except for the IDSI with
a child offense. Appellant was represented by Attorney Maria
Goellner at trial and sentencing.
On March 30, 2015, Appellant filed a [m]otion for [j]udgment of
[a]cquittal and [m]otion for a [n]ew [t]rial, which was denied by
[o]rder dated April 6, 2015.
Appellant was sentenced on June 26, 2015. [At his sentencing
hearing, the court ordered Appellant to serve an aggregate term
of 13 to 26 years in prison followed by five years’ probation. In
addition, the court designated Appellant as a sexually violent
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J-S20023-16
predator (SVP).] Appellant filed a [p]ost-[s]entence [m]otion for
[r]elief and [r]econsideration on July 6, 2015, which was denied
by [o]rder dated July 8, 2015.
Appellant filed a [timely n]otice of [a]ppeal on July 22, 2015.
On July 23, 2015, Appellant filed a [c]oncise [s]tatement of
[m]atters [c]omplained of on [a]ppeal. [The trial court issued its
Rule 1925(a) opinion on September 22, 2015.]
Trial Court Opinion, 9/22/15, at 1-4.
On appeal, Appellant raises the following questions for our review:
Did the court err by preventing Mr. Crooks from exercising
his right to a meaningful trial by jury with imparticl [sic]
jurors where counsel was precluded from conducting open
voir dire and asking questions to jurors?
Did the court err in failing to grant a judgment of acquittal
as to counts I – [V]I when the charging document alleged
criminal acts of a lengthy and vague span of dates and a
request for a bill of particulars was denied?
Did the court err in failing to grant a judgment of acquittal
at count II, aggravated indecent assault, when the
Commonwealth did not prove penetration beyond a
reasonable doubt[?]
Did the court err in allowing the testimony of a witness
whose identity was not disclosed to the defense until days
before trial?
Did the court err in finding that the defendant was a
sexually violent predator when there was a lack of
evidence that the defendant’s diagnosis of anti-social
disorder affected his volitional capacity and there was no
evidence of prior sexually deviant behavior?
Appellant’s Brief at 2-3 (block capitalization omitted).
We have carefully reviewed the submissions of the parties, the
certified record, the thorough opinion of the trial court, and the case law
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J-S20023-16
applicable to the issues raised by Appellant. Based upon our review, we are
satisfied that the trial court adequately and accurately addressed each of the
issues raised on appeal. Specifically, we agree with the following
assessments reached by the trial court: 1) Appellant was given appropriate
latitude in questioning the venire and any limitations placed upon trial
counsel were consistent with our rules prohibiting overly specific questions
by a party; 2) the charging documents filed in this case adequately set forth
the occurrence dates for course of conduct offenses where the victim was
able to narrow the relevant timeframes for each offense by stating her age,
her grade and school affiliation, and the time of year; 3) the victim’s
testimony that Appellant rubbed her clitoris provided sufficient evidence
from which the jury could infer penetration for purposes of establishing
aggravated indecent assault; 4) the admission of testimony from a
non-eyewitness who was disclosed to the defense two weeks prior to trial did
not constitute an abuse of discretion where such disclosure did not prejudice
Appellant’s ability to prepare for trial; and, 5) the Commonwealth introduced
clear and convincing evidence that Appellant met the statutory criteria for
SVP status, including the requirement that his anti-social personality
disorder made him likely to reoffend. See Trial Court Opinion, 9/22/15, at
7-8, 11-13, 13-15, 15-17, and 23-29. As we concur wholly in the foregoing
determinations, we adopt them as our own. In addition, we direct the
parties to include a copy of the trial court’s opinion, with the names of the
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J-S20023-16
victim’s stepsister and mother redacted, with all future filings pertaining to
our disposition of this appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2016
-6-
Circulated 03/15/2016 10:14 AM
. ; :
corvlM( ~WE f, - . I OF PENNSYLVANIA : JN THE COURT OF COMMON PLEAS
OF ERIE COUNTY, PENNSYLVANIA
v. CRIMINAL DIVISION
1 .. ~
(.
DONALD CROOKS, ("
.·,
Defendant NO. 2139 OF 2014 . }
I i·,,
'JI I
> I r .
OPINION '
, .. I c• • \.1
( .. '
Appellant, Donald Crooks, filed a Notice of Appeal on July 22, 2015, frot1\(hcjudisii1en~
I-'
... .· .
,. c1··
of sentence imposed on .June 24, 2015, after a jury trial. This Opinion is in response to' the
Statement of Matters Complained of on Appeal filed July 27, 2015.
BACKGROUND
Appellant was convicted after a four day jury trial on March 19, 2015 of criminal
attempt: involuntary deviate sexual intercourse, aggravated indecent assault of a child,
endangering the welfare of a child, corruption of minors, indecent assault, and indecent
1
exposure.
The charges against Appellant arose from a series of incidents in which he sexually
assaulted his daughter, K.L.C., · ; from the age of'? until she was about I I or 12.
The first incident occurred when K.L.C. was about 7 years old. Trial Transcript Day 2,
March 18, 2015 ("TT2"), p. 45. K.L.C. was visiting Appellant, her biological father, when he
was staying al a home where K.L.C's grandmother used to live. TT 2, p. 40. After taking a
shower, K.L.C. exited the bathroom and Appellant told her to go to change in his room, TT 2, p .
. "; I , '. \
42. Appellant came into the room as K.L.C. was dressing, pulled out his penis through his zipper
and told her lo suck on it. TT 2, pp. 43-44. When K.L.C. told him no, Appellant repeated the
demand. TT 2, p. 43. K.L.C. said no again and Appellant pushed her head toward his penis but
K.L.C pulled away. TT 2. p. 44.
1
181'.S. §901(a); 18 P.S. §3125(b); 18 r.s. §4304(a)(I); 18 P.S. §630l(a)(l)(ii); 18 P.S. §3126(a)(7); 181'.S.
§3127(a).
Appellant told K.L.C to stay in the room and went to the kitchen to get ice cream
sandwiches. TT. 2, pp. 45-46. Appellant got an ice cream sandwich for K.L.C. 's brother, who
was watching Peter Pan in the living room, and 0~1c fo1: K.L.C., and returned to the room. TT. 2,
p. 46. After K.L.C. finished eating the ice cream sandwich, Appellant took the wrapper and
rubbed the remaining ice cream on his penis. TT 2, pp. 47-48. Appellant told K.L.C. to lick the
ice cream off. TT 2, p. 48. K.L.C. refused and Appellant put his hands on the back of K.L.C. 's
head and tried to force it down towards his penis. TT 2, pp. 49-50. K.L.C. pulled away and was
then left to dress in the bathroom. TT 2, p. 51.
Another incident occurred at K.L.C.'s aunt's house, near the Whippy Dip ice cream shop.
TT 2, p. 52. K.L.C and Appellant arrived at the house after shopping together. TT 2, p. 52.
Appellant retrieved the key from above the door, let them into the house, and locked the door
behind him. TT 2, pp. 53, 55. K.L.C went into the small "toy room" and Appellant followed her
. '
in. T. T 2, pp. 56-57. K.L.C sat down on the mattress c>1; the floor and Appellant sat beside her.
T. T 2, p. 58. K.L.C. was playing with a toy and laid down and Appellant pulled a blanket over
the two of them and touched her clitoris over her underwear. TT 2, pp. 59-60. At the same time,
K.L.C. saw Appellant moving his hands under the blanket and believed Appellant was rubbing
his own penis. T. T 2, p. 60-61. K.L.C. told him to stop, but he did not. TT 2, p. 61. After some
time, Appellant stopped, unlocked the front door, and replaced the key above the door. TT. 2,
p.62.
One weekend during the summer, Appellant took K.L.C. to a construction site in a van he
borrowed from his friend John Cooper. TT. 2, p. 67-68. Appellant took K.L.C. into the woods in
an area blocked from view by a dirt pile and asked her 'to show him her breasts. TT 2, pp. 71,
75. K.L.C. said no. TT 2, p. 72. When Appellant asked again and K.L.C. refused, Appellant
2
tried to forcibly make K.L.C. show him her breasts but K.L.C. blocked him by crossing her arms
over her chest. T. 1'. 2, p. 72. Appellant then put K.L.C. in a "choker hold," where he put his arm
around K.L.C.'s neck and squeezed to make her pass out. T.T. 2, pp. 72-73. K.L.C. passed out
and when she woke up she was on the ground and Appellant's hand was in her pants, under her
clothes, rubbing her clitoris. TT. 2, p. 75. K.L.C. pulled his hand out of her pants, yelled al him
and stood up. T. T. 2, p. 75. As K.L.C. tried to leave, Appellant grabbed her arm and tried to put
her in a «choker hold" again but K.L.C. was able to break free, climb over the dirt pile, and get to
the van. TT 2, p. 77. Appellant drove K.L.C. tothe home of her uncle, Shawn Crooks.TT 2, p.
77.
On another occasion, when K.L.C. was 11 or 12, Appellant tried to touch K.L.C.'s
breasts at John Cooper's house after Appellant took K.L.C. to Hot Topic at the mall to buy a
bathing suit. TT. 2, p. 82. K.L.C. went to the bathroom to try it on and Appellant asked her to
come out so he could see. T. T 2, pp. 82-83. K.L.C. showed Appellant her bathing suit and
Appellant told her to go to the basement to the other bathroom. T.T 2, p. 83. Once K.L.C. and
Appellant were in the basement, Appellant asked K.L.C. to see her breasts. T 7: 2, p. 83. When
K.L.C. said no, Appellant untied the bathing suit behind K.L.C. 's neck. TT 2, p. 84. K.L.C.
held the suit up, but Appellant pulled at the suit and continued to ask to see her breasts. 7: T 2, p.
84. Appellant then stopped and K.L.C. tied her suit, went upstairs, and changed into street
clothes. T. T. 2, p. 85.
On another occasion, when K.L.C. was 11 or 12) Appellant brought K.L.C. to John
Cooper's storage building. TT 2, p. 90. Appellant told K.L.C. to sit on a little wooden bed and
to show him her breasts. K.L.C. said no and crossed her arms in front of her chest. T. T 2, p. 89.
Appellant stood in front of' her, took his penis out of his pants, and began to stroke it. TT. 2, pp.
3
89-90. Appellant asked K.L.C. to show him her breasts a few more times and then said if she did
not, that he would put his penis in her vagina. T. T. 2, p. 90.
' : .. I
The first person K.L.C. told about the abuse was her stepsister, M. B.
TT 2, p. 109. When K.L.C. ran away from home one night, M. 8. told K.L.C.'s mother,
, who then brought the information to the police. T. T. 2, pp. 110-1 I 2.
Appellant was charged with criminal attempt: involuntary deviate sexual intercourse
("IDS!") with a child, aggravated indecent assault of a child, endangering the welfare of a child,
corruption of minors, indecent assault, indecent exposure and JOSI with a child. On March 19,
2015, Appellant was found guilty after a trial by jury of all charges except for the JDSf with a
child offense. Appellant was represented by Attorney Maria Goellner at trial and sentencing.2
On March 30, 2015, Appellant filed a Motion for Judgment of Acquittal and Motion for a
New Trial, which was denied by Order dated Apri! 6., ~O 15.
' I '
Appellant was sentenced on June 26, 2015.' Appellant filed a Post Sentence Motion for
Relief and Reconsideration on July 6, 2015, which was denied by Order dated July 8, 2015.
Appellant filed a Notice of Appeal on July 22, 2015. On July 23, 20 IS, Appellant filed a
Concise Statement of Matters Complained of on Appeal. The following trial issues will be
addressed he rein. 3
I. The Court erred in allowing K.L.C., the victim> to testify and/or admitting the portion of
the Child Advocacy Center video in which she references being shown pornography;
2. The Court erred in allowing 'iv\. B. and I L.B. to testify;
3. The Court erred in limiting Rebecca Grant's testimony;
4. Appellant was prevented from conducting meaningful voir dire;
5. The Court erred in not granting the judgment of acquittal as to Counts J~IV because of the
vague nature of the dates of the criminal conduct charged;
--·---
2
Nee Kmpicz.
3
The pre-trial ruling denying Appellant's challenge to the competency and taint of the victim's testimony as well as
Appellant's request for a Bill of Particulars were addressed by the Honorable Judge Shad Connelly.
4
6. The Court erred in not granting judgment of acquittal at Count Il because the evidence
was insufficient to sustain the conviction;
7. The Court erred in instructing the jury related to Count II, Aggravated Indecent Assault,
when clarification was requested;
8. The Court failed to instruct the jury about vagueness in relation to credibility;
9. Appellant was prevented from exercising his right to testify on his own behalf;
10. The Court erred in not granting a new trial because the jury verdict was inconsistent; and
11. The Court erred in determining Appellant to be a "sexually violent predator."
These issues will be addressed seriatim.
WITNESS CLAIMS
Appellant makes various claims related to the admission or limitation of witness
testimony.
A. K.L.C.
1. Competency to Testify
Appellant argues error in finding K.L.C. competent and/or untainted to testify because
she came forward with new claims of abuse after she went on a ride along with Trooper Sean
Pierce and Trooper Olowin. These issues were addressed by the Honorable Judge Shad
Connelly. See Pre-Trial Hearing Transcript dated December 5, 2014; Order dated December 8,
2014.
2. Admission of Child Advocacy Center Interview
Appellant contends the Court improperly admitted the portion of K.L.C. 's Child
Advocacy Center ("CAC") interview in which she talks about Appellant showing her
pornography. Specifically Appellant argues the conduct was not charged in the information, was
extremely inflammatory and/or prejudicial and was improperly admitted under the Tender Years
Doctrine and/or as a prior consistent statement.
5
Evidence does not have to be "charged in the information" to be admissible. The victim's
prior statement about the Appellant showing the victim pornography was consistent with her trial
testimony. The evidence of pornography was relevant to Appellant's grooming of his sexual
victim and also admissible under the Tender Years doctrine.
"Evidence of a witness's prior consistent statement is admissible to rehabilitate the
witness's credibility if the opposing party is given an opportunity to cross-examine the witness
about the statement and the statement is offered to rebut an express or implied charge of ...
fabrication, bias, improper influence, or motive or faulty memory and the statement was made
before that which has been charged existed or arose." Pa.R.E. 613. In cases of minor sexual
assault, even unimpeached testimony may be admitted when the witness' status alone is such that
her testimony may be called into question because of age. Commonwealth v. Hunzer, 868 A.2d
4981 512 (Pa.Super. 2005) Admission of prior consistent statements on such grounds is a matter
left to the sound discretion of the trial court, to be decided in light of the character and degree of
impeachment. Id.
The CAC interview was conducted in August of 20131 prior to charges being filed.
K.L.C. 's interview was shown to the jury after K.L.C testified about a general course of abuse by
Appellant and specific incidents. On cross-examination, K.L.C. was questioned extensively to
discredit her recollection of the incidents in question. Her memory of the time, place, and
surrounding circumstances was called into question. K.L.C.'s memory was challenged not only
to a specific incident, but to the ongoing conduct as a whole. Appellant inferred K.L.C. was
1nci'cl:ent
1
making up the abuse en toto, not just one specific
Appellant ignores the fact the reference to pornography arguably showed Appellant was
grooming K.L.C. for his own sexual gratification. It is evidence of an ongoing course of conduct
6
by Appellant. The specific incidents to which K.L.C. testified were also part of this continuous
course of conduct. The reference to pornography therefore was properly admitted as a prior
consistent statement.
Separately, the reference to pornography was properly admitted under the tender years
hearsay exception, which allows for an out of court statement made by a chi Id age 12 or younger
describing, inter alia, offenses enumerated in 18 Pa.C.S.A 31 (relating to sexual offenses) if
relevant, reliable and the child testifies at the proceeding. 42 Pa.C.S.A. §5985. l(a).
Here, the CAC interview was conducted with K.L.C. when she was 12 years old. In the
interview, she discussed a series of incidents during which she was sexually assaulted by
Appellant. She also discussed an ongoing course of conduct over the 5 years during which abuse
occurred which also included the showing of pornography. The reference to pornography was
therefore properly admitted under the tender years hearsay exception.
B.. M,J3.
Appellant argues the Court erred in allowing • fi/\.-6. to testify.
Specifically, Appellant claims he suffered prejudice clue to the delayed disclosure of her identity
as a witness and delayed disclosure of her police statement.
Upon a motion for pretrial discovery, the Court may order the Commonwealth to disclose
and allow the defense to inspect, inter alia, the names and addresses of eyewitnesses.
Pa.R.Crim.P. 573(B)(2)(a)(i). The Commonwealth is under no obligation to disclose non-
eyewitness witnesses, however. Commonwealth v. Dietterick, 631 A.2d 1347, 1351 (1993).
Additionally, courts have found that as little as a one day period to prepare for cross examination
following the disclosure of the witness by the Commonwealth is sufficient notice. See
Commonwealth v. Figueroa, 859 A.2d 793, 800 (Pa.Super. 2004).
I ·~
7
Appellant was informed of the Commonwealth's intent to call __ /y'l_. f3.
about two weeks before the start of trial> well beyond the one day threshold accepted in
Figueroa, supra. T. T. 2, p. 5. Appellant had ample time to prepare cross examination and trial
strategy with the knowledge that M. 0. .:. . would testify. The Commonwealth had
no duty to disclose their intent to have M. f2> testify as a witness and even if it
did, Appellant had sufficient notice. Appellant has not established any prejudice by the timing of
the disclosure of this Commonwealth witness in terms of Appellant's trial strategy or defense.
Appellant's defense has always been a complete denial of any sexual conduct with the victim.
Appellant also argues M.0.'.s testimony should have been excluded
because it was cumulative and prejudicial. Admissibility of evidence is within the sound
discretion of the trial court and will not be reversed absent abuse of discretion. Commonwealth v.
Gonzalez, 109 A.3d 711, 726 (Pa. Super. 2015). "Evidence is relevant if it logically tends to
establish a material fact in the case or tends to support a reasonable inference regarding a
material fact." Id. A court may exclude relevant evidence if it is needlessly cumulative. Pa.R.E.
403.
M.0. is the victim's stepsister and was the first individual to whom she
disclosed the incidents of abuse. T.T. 2, pp. 109-110, 156-158. Ultimately, she was the person
who told K.L.C. 's mother about the allegations. T. T. 2, pp. 111, 159. . M.13.. __ - _
spoke to the circumstances surrounding K.L.C.'s disclosure, her demeanor, and the aftermath,
M. 0. s 1 testimony corroborated K.L.C. 's testimony about the disclosure
and explained how the abuse came to be known by her mother. Consequently, her testimony was
relevant, given by the only person who could give it and was not cumulative. There was no error
in permitting this testimony about the victim's disclosure.
8
c. C,.(3.
Appellant argues error in allowing _ l. 0. . . . . to testify because her testimony was
cumulative, prejudicial, and only served to bolster the K.L.C's testimony.
G.6. :, K.L.C.'s mother, reported the incidents of abuse to the police. TT 2, p.
174. She gave testimony about K.L.C.'s background and her history with Appellant, which
served to corroborate K.L.C's testimony and explain why K.L.C. was visiting her biological
father alone on weekends and where those visits would occur. TT 2, pp. 170~!72.
also testified about the night she was told about the abuse by M_,_0 · -- . . . :, including
K.L.C.'s demeanor and actions. TT 2, p. 173. Additionally, l.~ .. : corroborated K.L.C.'s
testimony that they did not discuss the specifics of the abuse. T 7: 2, p. I 74.
Consequently, Ct.l2>.'s · testimony was relevant and properly permitted. This
testimony was not cumulative because it was given by the only person who could give it.
D. Rebecca Grant
Appellant argues the Court erred in limiting the testimony elicited from Rebecca Grant
related to K.L.C. 's motive for fabricating allegations against Appellant. This claim is waived and
inaccurate.
Appellant has not preserved this issue for appeal. Appellant failed to make a timely and
specific objection at the appropriate stage of the proceedings before the trial court.
., '
Commonwealth v. Houck, l 02 A.3d 443, 451 (2014). A party must object to "errors,
improprieties, or irregularities at the earliest possible state of the adjudicatory process" to allow
for the error to be remedied and avoid unnecessary appeals. Tindall v. Friedman, 970 A.2d l l 59,
1174 (Pa.Super. 2009). Failure to make a timely, proper objection will result in waiver of an
issue. Houck, 102 A.3d at 451. Additionally, raising the issue in a statement of errors complained
9
of on appeal does not undo a waiver as it is not a substitute for the contemporaneous objection
required at trial. Commonwealth v. Ali, 10 A.3d 282, 293 (2010).
This argument is also unsupported by the record. When the prosecution requested a
proffer regarding Rebecca Grant's testimony, Appellant's counsel explained:
MS. KRUPICZ: Judge, so Becca Grant will be called forth to say that the
night that K eara Crooks ran away in August of 2013 when these allegations came
out for the first time. The inference, I think, to the jury has been, although not
explicitly stated, she ran away, she came back, she was upset, and then this all
came out. Becca Grant would simply say, and I will -- before she's called I would
ask for a few minutes recess, but she would testify that she didn't say anything
about her dad, she didn't say anything about molestation or anything like that, said
basically that she ran away because I can say she got in a fight with her mom. I
believe what she would actually say is that her mom and possibly stepdad beat
her, but I can certainly instruct her not to say that, and just that they got into a
fight, and that's why, nothing about _dad didn't say anything about dad. Also, that
1\1\. 13. was not with her, becuuseiAt'.Lf3 .1 had testified that she went with her.
7: 1'. 3, pp. 12-13.
After a brief discussion about possibly leading Ms. Grant because she is a minor witness,
the Court noted:
THE COURT: The only thing I'd say, we talked about this yesterday, is
you've got to be careful because if you go beyond that, then you're opening up a
can of collateral worms on collateral matters that may spill over to your client
also.
MS. KRUPICZ: Understood.
TT 3, p. 14.
Importantly, no objection was placed on the record by Appellant regarding Rebecca
Grant's testimony. The issue is therefore waived.
Assuming arguendo the issue is not waived, it is nonetheless without merit. As the record
reflects Rebecca Grant testified about all of the matters within Appellant's proffer. During direct
examination, Rebecca Grant testified that despite theirclose relationship, K.L.C. never disclosed
10
any incidents of abuse to her, including the night she run away and the incidents were eventually
disclosed to (';. 6. . T. T. 3, p. 74. Instead, Ms. Grant testified K.L.C. told her she was
running away because of a fight with her mom and stepdad and was ultimately brought home by
the police. T. T 3, p. 73.
Ms. Grant therefore did testify to a motive K.L.C. had to lie-a fight with her family,
running way, and being brought home by the police. The sum of Ms. Grant's actual testimony
was consistent with Appellant's proffer and enabled Appellant to challenge K.L.C.'s credibility.
Moreover, as made clear by the Court's comments, any limitation to her testimony was
intended to prevent issues being discussed that could have prejudiced Appellant. Consequently,
Appellant's argument is specious and Appellant has suffered no prejudice.
VOIR DIRE
Appellant claims he was prevented from exercising his right to conduct meaningful voir
dire because he was prevented from "open voir dire" into prospective jurors' feelings about
whether young people lie about sex, their feelings on child molestation, and people accused of
such crimes.
Appellant's argument is contradicted by the record. Appellant was given ample
opportunity beyond reviewing the written questionnaire responses to ask a multitude of questions
·1·i
to the jury pool and conducted individual voir dire ~vith nearly each prospective juror. To say
Appellant was denied the chance to conduct "open voir dire," a phrase given no legal definition
or authority by Appellant, is disingenuous.
The purpose of voir dire is to secure a competent, fair, impartial and unprejudiced jury.
Commonwealth v. Noel, I 04 A.3d 1156, 1168 (Pa. 2014). The scope of voir dire is within the
sole discretion of the trial court and will not he reversed on appeal "absent palpable error."
11
Commonwealth v. Mattison, 82 A.3d 386, 397 (Pa. 2013). Specifically, the form, wording, or
nature of questioning by a party is subject to the discretion of the trial court and does not
constitute error when there has been an appropriateinquiry into the potential jurors' attitudes or
prejudices toward a relevant subject. See Wytiaz v. Deitrick, 954 A.2d 643, 648 (Pa. Super.
2008).
In this case, prospective jurors completed the juror questionnaires after arrival in the
morning and the lawyers were given the rest of the morning to review the juror's written
responses before questioning jurors. After lunch, the lawyers were given the opportunity to ask
follow-up questions of the jury pool without the Court present. The lawyers asked questions of
the jury pool from 1 :2 I p.m, until 4:43 p.m, The record reflects the bulk of the questions were
asked by Appellant.
Appellant asked a series of open ended questions related to the jury questionnaire. T. 7'. 1,
pp. 69~ 71. Appellant then conducted indi victual Vair. dire of near I y every member of the jury
panel. Appellant asked the jury pool specific questions related to the case and elicited responses
from individual jurors. After generous latitude with Appellant, the Commonwealth finally
objected. In opposing the Commonwealth's objection, Appellant's counsel explained she
intended to ask the jury pool about whether they believed teenagers could lie, including about
potentially embarrassing subjects like sex. TT. 1, pp. 75-76, 79-80. In response, the Court
explained:
THE COURT: See, here's the difficulty I have. Voir dire isn't to try your case and
to get jurors who agree with your point of view or to weed them out. I mean, it's
to ferret out any biases or prejudice that they may have. But to argue your case is
really what you're doing as I hear what you're saying,
T.T. 1,p. 78.
12
What the record reflects is that Appellant in fact asked the jury panel about teenager's
propensity to lie, especially about sex. See T. T. 1, pp. 71 ·73. Therefore, Appellant's alleged error
on appeal is factually unsupported.
The Superior Court has routinely upheld trial court decisions to limit overly specific voir
dire questions by parties, See e.g., Commonwealth v. Marrero, 687 A.2d 1102, 1108 (Pa. 1996).
As the Court noted, such questions seek to determine what jurors would be sympathetic to a
particular party's position rather than neutral. Such. questions are improper for voir dire.
Appellant was able to effectively question the jury pool about opinions and potential
biases that might affect their ability to serve as a juror and was permitted to question in depth
individual jurors. Appellant had a full and meaningful opportunity to participate in votr dire. The
record establishes Appellant has not identified any prejudice. Accordingly, there was not an
abuse of discretion in the broad latitude of voir dire given to Appellant.
JUDGMENT OF ACQUITTAL: COUNTS I~VI
Appellant states the Court erred by not dismissing the charges and denying the Request
for Bill of Particulars because the charging document was vague as to when the offenses
occurred. Specifically, Appellant argues because the criminal acts were charged as occurring
between 2007 and 2012, the evidence was insufficient to convict and Appellant's right to
establish a defense was prohibited.
At the outset, the Court notes Appellant's Request for Bill of Particulars was denied as
untimely by Judge Connelly. See Pre-Trial Hearing Transcript December 5, 2014; see also
Order dated December 8, 2014.
Separately, the charging document was sufficiently specific regarding the dates of the
offenses. It is the duty of the Commonwealth to fix a date of when cm alleged offense occurred
13
with reasonable certainty. Commonwealth v. Jette, 818 A.2d 533, 535 (Pa.Super, 2003).
However, the Commonwealth is not required to prove specific dates for each crime and is
afforded latitude when charging certain crimes-specifically when the case involves an ongoing
course of conduct, including sexual offenses against a child victim. Commonwealth v. Riggle,
2015 PA Super 147 (July 7, 2015); Commonwealth v. G.D.M., sr., 926 A.2