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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD E. BENSON
Appellant No. 2923 EDA 2015
Appeal from the Judgment of Sentence July 2, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003663-2014
BEFORE: PANELLA, OLSON, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JULY 14, 2016
Appellant, Ronald Benson, appeals from the judgment of sentence
entered on July 2, 2015 following his jury trial convictions for involuntary
deviate sexual intercourse with a child less than 13 years of age, aggravated
indecent assault of a person less than 13 years of age, indecent assault of a
person less than 13 years of age, and endangering the welfare of a child.1
We affirm.
These convictions arose from Appellant’s long-term sexual abuse of his
13-year-old daughter C.L, which began sometime around her tenth birthday.
On July 2, 2015, the trial court sentenced Appellant to 84 to 168 months’
incarceration, followed by an aggregate term of 10 years’ probation. On July
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1
18 Pa.C.S.A. §§ 3123(b), 3125(b), 3126(a)(7), and 4304, respectively.
*Former Justice specially assigned to the Superior Court.
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10, 2015, Appellant filed a post-sentence motion for arrest of judgment and
a new trial. The motion argued that the trial court erred in refusing to admit
evidence that L.L.,2 the victim’s mother, worked as a prostitute and that she
caused the victim to contract chlamydia. The court denied that motion on
September 1, 2015. This appeal followed.3
Appellant presents the following issues for review:
I. Did the [trial court] err in denying admission by
[Appellant] of evidence regarding Commonwealth
witness [L.L.]’s work as a prostitute?
II. Did the [trial court] err in denying admission by
[Appellant] of evidence regarding the initial charges
relating to Commonwealth witness [L.L.]’s conviction
of the misdemeanor offense of disorderly conduct?
III. Did the Commonwealth fail to prove the elements of
the offenses beyond a reasonable doubt?
Appellant’s Brief at 5.
Appellant directs his first two issues to the trial court’s exclusion of
defense evidence. We state our well-established standard of review:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the
trial court upon a showing that it abused its discretion or
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2
We use initials in place of L.L.’s name to protect her identity.
3
On September 29, 2015, the trial court ordered Appellant to file a
statement pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on
November 13, 2015. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on December 10, 2015.
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committed an error of law. Thus, [this Court’s] standard of
review is very narrow. To constitute reversible error, an
evidentiary ruling must not only be erroneous, but also harmful
or prejudicial to the complaining party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012). “We will not
disturb a trial court’s ruling unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support as to be clearly erroneous.” Commonwealth v. Einhorn, 911 A.2d
960, 972 (Pa. Super. 2006) (citation and quotations omitted).
Relevance is the threshold question for admissibility of evidence.
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). “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). We previously determined:
Trial judges generally enjoy broad discretion regarding the
admission of potentially misleading or confusing evidence.
Trial judges also have the authority to exclude relevant
evidence if its probative value is substantially outweighed
by the danger of unfair prejudice or confusion. See Pa.R.E.
403 (“Although relevant, evidence may be excluded if its
probative value is outweighed by the danger of unfair
prejudice, confusion of the issues or misleading the jury.”).
Furthermore, the function of the trial court is to balance the
alleged prejudicial effect of the evidence against its
probative value, and it is not appropriate for an appellate
court to usurp that function.
Commonwealth v. Parker, 882 A.2d 488, 492 (Pa. Super. 2005) (citations
omitted), affirmed on other grounds, 919 A.2d 943 (Pa. 2007).
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In his first issue presented, Appellant contends the trial court erred by
excluding evidence that L.L. may have worked as a prostitute. Appellant’s
Brief at 14.
To support its case, the Commonwealth presented evidence that C.L.
suffered from a chlamydia infection and that Appellant admitted to having
chlamydia at the time the abuse occurred. As an alternative explanation for
C.L.’s chlamydia, Appellant maintained that L.L. had been working as a
prostitute, that her sexual activity exposed her to the disease, and that she
transmitted the disease to C.L. through contact with L.L.’s infected
underwear. Trial Court Opinion, 12/10/15, at 10. Accordingly, Appellant
filed a motion in limine seeking to introduce a Backpage.com ad posted to
Craigslist. Id. at 10, 19.
Following a hearing on Appellant’s motion in limine, the trial court
ruled the purported evidence was inadmissible because it was irrelevant and
far more prejudicial than probative. Id. at 13. The trial court found that
Appellant had no evidence to prove L.L. was a prostitute. Id. Moreover, the
trial court found that the word “prostitute” was far more prejudicial than it
was probative. N.T., 10/6/14, at 8. In its opinion, the trial court concluded:
1) the Backpage.com posting, in 2006, was too remote in time from the
alleged abuse; 2) even if the posting was authentic, it did not demonstrate
that L.L. ever actually engaged in prostitution; 3) the evidence was an
attempt to slander the witness; 4) the posting was not relevant to
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Appellant’s guilt; and 5) Appellant’s contention that the posting would
demonstrate that “it was more likely than not that C.L contracted chlamydia
from her mother’s actions” was erroneous. Id. at 19.
Upon review, we discern no abuse of discretion. The evidence
Appellant sought to admit was not probative of any material fact related to
his guilt or innocence. Any link between an alleged personal ad and
prostitution, or between prostitution and C.L.’s infection, was mere
speculation. In fact, Appellant’s expert witness testified under cross-
examination that he was unaware of any diagnosed case of chlamydia
contracted from contact with another’s underwear. N.T., 4/2/15, at 34.
Moreover, while an alternate source of C.L.’s chlamydia would tend to
negate or diminish Appellant’s role as the source, the proffered evidence:
(1) did not show sexual contact, much less infection; (2) had a low probative
value and was highly prejudicial; and (3) suggested transmission of the
disease through contact with another’s underwear which was medically
improbable, even if L.L. were a prostitute. The trial court found that
whether L.L. had posted an ad on Backpage.com would not have assisted a
trier of fact in determining whether the Commonwealth had proven the
charges against Appellant. We conclude the trial court did not abuse its
discretion by balancing the dubious relevancy of the evidence in this case
against its potential to mislead or confuse. See Parker, 882 A.2d at 492.
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Next, Appellant argues that the trial court should have permitted
defense counsel to cross-examine L.L. on her prior conviction for disorderly
conduct. Appellant’s Brief at 16-17.
Appellant sought to introduce evidence that L.L. absconded from the
Commonwealth with one of her children, in violation of a set custody and
visitation order. Appellant’s Brief at 6. L.L.’s initial charges included
kidnapping and interference with a custodial order. She pled guilty to
disorderly conduct as part of a negotiated deal, in exchange for dismissal of
all other charges. Trial Court Opinion, 12/10/15, at 20. Appellant sought to
question L.L. in order to establish a pattern of animosity between her and
Appellant and to demonstrate her propensity “not to follow the rules when it
comes to her children.” N.T., 10/6/14, at 8. Appellant claimed that L.L.
influenced C.L. into falsely accusing Appellant of the crimes herein to gain
custody of C.L. Appellant’s Brief at 6-7.
For the purpose of attacking the credibility of any witness, evidence
that the witness has been convicted of a crime, whether by verdict or by
plea of guilty or nolo contendere, must be admitted if it involved dishonesty
or false statement. Pa.R.E. 609(a). Where the crime is not one of
dishonesty, the trial court has discretion to limit cross-examination of a
prosecution witness if the prejudicial effect of the conviction outweighs its
probative value. See Commonwealth v. Palo, 24 A.3d 1050, 1057 (Pa.
Super. 2011); Commonwealth v. Hyland, 875 A.2d 1175, 1187-88 (Pa.
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Super. 2005). This Court previously stated that disorderly conduct is not a
crime involving dishonesty or false statement. See, e.g., Allen v. Kaplan,
653 A.2d 1249, 1253 (Pa. Super. 1995); Commonwealth v. Brabham,
407 A.2d 424, 427 (Pa. Super. 1979).
On this issue, the trial court concluded:
The [trial c]ourt [] denied Appellant’s request because the
conviction does not qualify as a crimen falsi. In addition,
the child involved in the interference with a custody order
was not C.L. Furthermore, counsel for Appellant was able
and did cross[-]examine [L.L.] on the [protection from
abuse order] that Appellant had against her and that the
custody order gave Appellant primary custody of the
children. N.T., 3/31/15, at 211-12. In addition, counsel for
Appellant thoroughly and effectively cross-examined [L.L.]
in regards to her violation of the order when she absconded
with her one son in December of 2011 and that Appellant
was charged criminally and pled guilty as a result of that
action. N.T., 3/31/15, at 213. The jury heard everything
Appellant wanted them to in order to make his argument
that [L.L.] was mad at Appellant for gaining custody of the
children and fabricated the abuse as a result.
Trial Court Opinion, 12/10/15, at 20.
We agree with the trial court’s assessment. The trial court did not
prevent Appellant from making his argument by restricting the scope of
cross-examination about the prior incident. Appellant has suffered no
prejudice, and there is no basis for relief. See Lopez, 57 A.3d at 81.
In his third issue, Appellant claims the evidence was insufficient to
support his convictions as a matter of law. Appellant’s Brief at 17-18.
Initially, this Court must determine whether Appellant has properly
preserved this issue for appeal.
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In order to preserve a challenge to the sufficiency of the
evidence, an appellant’s Rule 1925(b) statement must state
with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. Such
specificity is of particular importance in cases . . . where the
appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013). A
failure to identify the specific element or elements that the Commonwealth
failed to prove at trial in a 1925(b) statement renders an appellant’s
sufficiency of the evidence claim waived for appellate review. Id.
Here, Appellant’s 1925(b) statement reads:
The Commonwealth failed to prove the elements of the
offenses beyond a reasonable doubt. Much of the testimony
presented by the Commonwealth was inconsistent and it
failed to present any evidence regarding the chlamydia
diagnosis of the defendant.
Rule 1925(b) Statement, 11/13/15, at 2.
Appellant’s concise statement fails to specify the particular element of
any crime that the Commonwealth failed to prove beyond a reasonable
doubt. As previously noted, proof of Appellant’s chlamydia is not an element
of any of the offenses. Thus, Appellant has waived his sufficiency claim.
See Garland, 63 A.3d at 344 (A generic statement that the evidence is
legally insufficient to support the convictions is too vague to preserve an
insufficiency claim for appeal.).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2016
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