J-A07009-17
2017 PA Super 261
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN YOCOLANO,
Appellant No. 808 WDA 2015
Appeal from the Judgment of Sentence April 21, 2015
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0003175-2012
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
OPINION BY OLSON, J. FILED AUGUST 14, 2017
Appellant, John Yocolano, appeals from the judgment of sentence
entered on April 21, 2015, following his jury trial convictions for three counts
of indecent assault, two counts of sexual assault, and one count each of
rape, kidnapping, involuntary deviate sexual intercourse (IDSI), aggravated
assault, simple assault, unlawful restraint, terroristic threats, and false
imprisonment.1 Upon careful consideration, we are constrained to vacate
the judgment of sentence and remand for a new trial.
We summarize the facts as presented at trial as follows. A.A. and
Appellant had a tumultuous romantic relationship over the course of several
years. In 2010, A.A. and Appellant lived together. On December 19, 2010,
____________________________________________
1
18 Pa.C.S.A. §§ 3121, 2901, 3123, 2702, 2701, 2902, 2906, and 2903,
respectively.
*Retired Senior Judge assigned to the Superior Court.
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police responded to a call stating that Appellant had an altercation with A.A.
wherein Appellant kicked in an exterior door, breaking the lock and then
chased A.A. around her father’s house. A.A. ended her relationship with
Appellant, but then resumed it several months later.
In December 2011, Appellant and A.A. moved in to an apartment
together after A.A. found out that she was pregnant. On March 13, 2012,
Appellant threatened A.A. with a machete during a verbal altercation. Police
responded to the scene, but no criminal charges were filed. Appellant and
A.A. continued living together and their son was born in May 2012.
On July 16, 2012, A.A. called the police in response to another
argument, but after the altercation, she continued living with Appellant. On
July 27, 2012, police responded to an emergency call from A.A. claiming that
Appellant expressed suicidal thoughts and left the residence following an
argument between the parties.
In August 2012, the parties became engaged to be married. On
September 1, 2012, A.A. filed a police report claiming Appellant threatened
and choked her. Police recommended that A.A. file a petition for Protection
from Abuse (PFA), but she did not. On September 19, 2012, Appellant
punched A.A. in the head and stomach and threatened to kill her and her
family. On September 21, 2012, police responded to a call from Appellant
wherein he claimed A.A. and their child were missing for two days. Upon
investigation, police found A.A. at her father’s house along with the couple’s
child. On October 4, 2012, A.A. obtained a final PFA against Appellant. In
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November 2012, the parties again attempted reconciliation, but A.A. and the
couple’s child moved in with another man.
In December 2012, A.A. filed a petition to withdraw the PFA against
Appellant and a hearing was scheduled in January 2013. When A.A. relayed
this information to Appellant, he became angry. At the time, the parties’ son
was in Appellant’s custody and he told A.A. to retrieve the child. A.A.
testified that when she arrived at Appellant’s residence, he lured her inside,
locked the door, punched her in the face, and began strangling her. A.A.
stated that Appellant carried her to the bedroom where he tied her wrists
and ankles with an electrical cord and forcibly removed her clothes. Over
the next few hours, Appellant removed and retied the bindings several times
while forcing multiple acts of vaginal and oral intercourse on A.A. Following
the assault, Appellant instructed A.A. to shower. When A.A.’s friend came to
Appellant’s residence to inquire about her whereabouts, A.A. escaped and
went directly to local police to report the incident. She was taken by
ambulance to the hospital where medical staff documented bruises to A.A.’s
neck, face, ankles, and wrists. A rape examination kit was performed which
revealed the presence of Appellant’s semen and DNA.2 Appellant was
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2
Appellant concedes that he engaged in sexual acts with A.A., but claims it
was consensual.
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arrested and the Commonwealth filed a criminal information against
Appellant charging him with the aforementioned offenses.
Prior to and during trial, the trial court ruled on several evidentiary
matters that are the subject of this appeal. On November 7, 2014, the
Commonwealth filed a motion in limine to exclude the report and testimony
of Appellant’s proffered expert, Cyril H. Wecht, M.D., who opined about the
cause and manner of A.A.’s injuries.3 The Commonwealth’s motion claimed
that Appellant did not establish that Dr. Wecht qualified as an expert.
Moreover, the Commonwealth maintained that Dr. Wecht’s report was
inadmissible because it offered an opinion on A.A.’s credibility.4 See
Commonwealth’s Motion in Limine to Exclude Defendant’s Report and
Testimony, 11/7/2014, at ¶ 8; id. at Exhibit 1. The trial court held a
hearing on the admissibility of Dr. Wecht’s report on December 1, 2014. By
order entered on December 2, 2014, the trial court granted the
Commonwealth’s request to preclude Dr. Wecht’s report and testimony,
concluding “the proposed expert testimony is not necessary to explain injury
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3
Dr. Wecht determined that the documented injuries were inconsistent with
A.A.’s account of events. His report stated that he “would have expected
significantly more evidence of such violent, physically traumatic, deliberately
inflicted injuries to be present.” See Commonwealth’s Motion in Limine to
Exclude Defendant’s Report and Testimony, 11/7/2014, Exhibit 1, at 4.
4
Dr. Wecht’s report states, “the relative superficiality and paucity of physical
injuries documented at the hospital raises serious doubts about [A.A.’s]
account.” See Commonwealth’s Motion in Limine to Exclude Defendant’s
Report and Testimony, 11/7/2014, Exhibit 1, at 4.
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or lack of injury and that the proposed testimony would invade the province
of the jury regarding [A.A.’s] credibility.”5 Order, 12/2/2014, (unpaginated)
at 1.
On December 18, 2014, the Commonwealth filed a notice of intent to
permit the use of prior bad acts evidence pursuant to Pa.R.E. 404(b). The
Commonwealth sought to use three police reports related to the March 13,
2012, September 1, 2012, and September 21, 2012 incidents, as detailed
above. On December 19, 2014, the Commonwealth filed an amended notice
of intent to permit the use of additional prior bad acts evidence. Therein,
the Commonwealth sought to use two police reports related to the July 16,
2012 and July 27, 2012 incidents, as set forth previously. The
Commonwealth also filed a motion in limine to support the admission of
evidence relating to the episodes of domestic abuse as prior bad acts under
Rule 404(b). Following argument, the trial court entered an order on
December 24, 2014, granting the Commonwealth’s request to use the prior
bad acts evidence. On January 2, 2015, the Commonwealth filed a second
amended notice of intent to use prior bad acts. In that filing, the
Commonwealth sought to introduce the police report from the December
2010 incident wherein police responded to a call that Appellant chased A.A.
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5
As discussed later, on appeal, Appellant does not specifically challenge
the trial court’s order precluding Appellant from calling Dr. Wecht as an
expert witness. See infra at 22, n.9.
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after kicking open her father’s front door. The Commonwealth also sought
to use the October 2012 PFA filed by A.A. against Appellant. The trial court
never entered a new order, or amended its December 24, 2014 order, to
include the prior bad acts presented in the Commonwealth’s second
amended Rule 404(b) notice.
A jury trial commenced on January 12, 2015. After A.A. testified,
Appellant sought leave to recall her and ask about three statements posted
to her Facebook account in the weeks following the incident at issue. The
trial court denied Appellant relief. On the fourth day of trial, the
Commonwealth sought to use two additional unrelated PFAs (filed against
Appellant by women other than A.A.) which the prosecution claimed it had
just discovered. The trial court ruled that the Commonwealth could only use
these PFAs on cross-examination if Appellant testified. Appellant, however,
did not testify. At the conclusion of trial, the jury convicted Appellant of all
charges. On April 21, 2015, the trial court sentenced Appellant to an
aggregate sentence of 18 to 36 years of imprisonment. This timely appeal
resulted.6
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6
On May 18, 2015, Appellant filed a notice of appeal. On June 15, 2015,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. On August 27, 2015, however, Appellant presented a motion for
leave to supplement his Rule 1925(b) statement as defense counsel had not
yet received transcripts of the jury charge. The trial court granted Appellant
an additional 21 days following the receipt of the transcript to supplement
his Rule 1925(b) statement. Appellant filed a revised Rule 1925(b)
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issues7 for our review:
1. Did the trial judge commit an abuse of discretion by denying
[] Appellant his right to rebut the Commonwealth’s
404(b)/prior bad act evidence?
2. Did the trial judge commit an abuse of discretion by
prohibiting Appellant from re-calling [A.A.] upon the discovery
of new evidence, mid-trial, which demonstrated clear motive
to lie and which squarely supported [] Appellant’s defense?
3. Did the trial judge commit an abuse of discretion by
permitting a Commonwealth lay witness to testify to expert
opinions [] in clear violation of Pennsylvania Rule of Evidence
701(c)?
4. Did the trial judge commit an abuse of discretion by
permitting the Commonwealth’s use of two [PFAs] involving
other individuals which were produced to the defense for the
first time on the 4th day of a 5 day trial – which prevented []
Appellant from testifying in his own defense?
5. Did the cumulative effect of all the errors on evidentiary
rulings deprive Appellant of a fair trial?
Appellant’s Brief at 6-7.
_______________________
(Footnote Continued)
statement on November 9, 2015. The trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on April 13, 2016.
7
While Appellant presented 19 issues for the trial court’s review, he only
presents five issues on appeal to this Court. Appellant has abandoned the
other fourteen issues by failing to provide any discussion of the claims with
citation to relevant authority, and, thus, we consider them waived. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citation
omitted) (“where an appellate brief fails to provide any discussion of a claim
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”).
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All of Appellant’s issues challenge evidentiary rulings by the trial court.
Thus, our standard of review is as follows:
The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness,
or partiality, prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
In the event of an erroneous admission of evidence, a verdict
can still be sustained if the error was harmless. An error is
harmless if it could not have contributed to the verdict, or stated
conversely, an error cannot be harmless if there is a reasonable
possibility the error might have contributed to the conviction.
[Our Supreme Court has] found harmless error where:
(1) the error did not prejudice the defendant or the
prejudice was de minimis;
(2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was
substantially similar to the erroneously admitted
evidence; or
(3) the properly admitted and uncontradicted evidence
of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison
that the error could not have contributed to the
verdict.
The Commonwealth has the burden of proving harmless error
beyond a reasonable doubt.
Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015) (internal
citations and quotations omitted).
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In his first issue presented, Appellant claims that the trial court
wrongly prohibited him from refuting or rebutting the Commonwealth’s
presentation of Rule 404(b) prior bad acts evidence. Appellant’s Brief at 19-
20. More specifically, Appellant claims that the trial court erroneously
barred him from calling witnesses to rebut A.A.’s account of the December
2010 incident wherein police responded to a call that Appellant chased A.A.
after breaking down her father’s front door. Id. Appellant also argues that
the trial court erroneously denied relief when Appellant “offered to call three
neighbors who lived in the small apartment complex to testify that they saw
[and] heard nothing” to refute A.A.’s claim “that Appellant administered
prior beatings to [A.A.] in their apartment and that she would scream for
help.” Id. at 11. Appellant claims that the trial court allowed the
Commonwealth to present Rule 404(b) evidence of past incidents of
domestic violence between A.A. and Appellant, ruling that the testimony was
probative of the crimes charged. In contrast, the trial court prohibited
Appellant’s attempts to rebut the accuracy, extent or severity of the
episodes, concluding that such rebuttal testimony was collateral. Id. at
9-10. Appellant argues that the same standard should apply to both parties
– if episodic prior bad acts evidence is relevant, then evidence relating to the
same episodes that rebuts an opponent’s proof is also relevant; if the prior
bad acts evidence is collateral, then rebuttal evidence would likewise be
collateral. Id. at 20. Appellant thus claims that the trial court abused its
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discretion by precluding rebuttal witnesses who were prepared to testify that
A.A. fabricated her assertions of past abuse by Appellant. Id. at 10-11.
Pennsylvania Rule of Evidence 404(b), pertaining to prior bad acts
evidence, provides, in pertinent part:
* * *
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person's
character in order to show that on a particular
occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible
for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only
if the probative value of the evidence outweighs
its potential for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the
prosecutor must provide reasonable notice in
advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of
the general nature of any such evidence the
prosecutor intends to introduce at trial.
Pa.R.E. 404(b).
This Court recently determined:
Evidence of a defendant's distinct crimes are not generally
admissible against a defendant solely to show his bad character
or his propensity for committing criminal acts, as proof of the
commission of one offense is not generally proof of the
commission of another. However, this general proscription
against admission of a defendant's distinct bad acts is subject to
numerous exceptions if the evidence is relevant for some
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legitimate evidentiary reason and not merely to prejudice the
defendant by showing him to be a person of bad character.
Exceptions that have been recognized as legitimate bases for
admitting evidence of a defendant's distinct crimes include, but
are not limited to:
(1) motive; (2) intent; (3) absence of mistake or
accident; (4) a common scheme, plan or design such
that proof of one crime naturally tends to prove the
others; (5) to establish the identity of the accused
where there is such a logical connection between the
crimes that proof of one will naturally tend to show
that the accused is the person who committed the
other; (6) to impeach the credibility of a defendant
who testifies in his trial; (7) situations where
defendant's prior criminal history had been used by
him to threaten or intimidate the victim; (8)
situations where the distinct crimes were part of a
chain or sequence of events which formed the
history of the case and were part of its natural
development (sometimes called “res gestae”
exception).
Additional exceptions are recognized when the probative value of
the evidence outweighs the potential prejudice to the trier of
fact.
Commonwealth v. Hicks, 151 A.3d 216, 225 (Pa. Super. 2016) (emphasis
in original).
We previously noted:
Our Supreme Court has consistently recognized that admission
of distinct crimes may be proper where it is part of the history or
natural development of the case, i.e., the res gestae exception.
[…O]ur Supreme Court explained,
the res gestae exception to the general proscription
against evidence of other crimes, is also known as
the complete story rationale, i.e., evidence of other
criminal acts is admissible to complete the story of
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the crime on trial by proving its immediate context of
happenings near in time and place.
Where the res gestae exception is applicable, the trial court must
balance the probative value of such evidence against its
prejudicial impact. In conducting this balancing test,
courts must consider factors such as the strength of
the other crimes evidence, the similarities between
the crimes, the time lapse between crimes, the need
for the other crimes evidence, the efficacy of
alternative proof of the charged crime, and the
degree to which the evidence probably will rouse the
jury to overmastering hostility.
Commonwealth v. Brown, 52 A.3d 320, 325–327 (Pa. Super. 2012)
(internal citations and quotations omitted). “Our Supreme Court has stated
that PFA petitions are admissible and relevant to demonstrate the continual
nature of abuse and to show the defendant's motive, malice, intent, and
ill-will toward the victim.” Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa.
Super. 2016), citing Commonwealth v. Drumheller, 808 A.2d 893, 905
(Pa. 2002).
Upon review, we discern no abuse of discretion in allowing evidence of
A.A.’s and Appellant’s relationship, including the PFA issued in favor of A.A.
and against Appellant. The trial court determined that the incident at issue
logically grew out of the prior set of circumstances, proof of which was
necessary to explain the complete story. It balanced the probative value of
the evidence against its prejudice. We discern no abuse of discretion.
However, Appellant further argues that the trial court then abused its
discretion by precluding him from calling various witnesses to rebut A.A.’s
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prior bad acts testimony pertaining to the parties’ acrimonious relationship
on the basis that such testimony would be collateral. The trial court relied
upon Pennsylvania Rule of Evidence 607, which sets forth the scope of
impeaching witnesses. Trial Court Opinion, 4/13/2016, at 28-30. Rule 607
provides, “[t]he credibility of a witness may be impeached by any evidence
relevant to that issue, except as provided by statute or these rules.” Pa.R.E.
607. The trial court also cited our Supreme Court’s 1941 decision in
Commonwealth v. Petrillo, 19 A.2d 288 (Pa. 1941) for the proposition
that “[n]o witness can be contradicted on everything he testifies to” or on
collateral matters “which ha[ve] no relationship to the case on trial.” Trial
Court Opinion, 4/13/2016, at 29-30, citing Petrillo, 19 A.2d at 295. In this
case, the trial court limited rebuttal testimony to “allow the neighbors to
testify regarding what they saw and heard the night of December 6, 2012[,
the date of the alleged assault sub judice].” Trial Court Opinion, 4/13/2016,
at 30. The trial court, however, precluded Appellant from calling witnesses
to refute A.A.’s version of events regarding specific episodes that occurred
during the parties’ relationship. It reasoned that none of the proffered
witnesses “offered any evidence to contradict [] the events of December 6,
2012, [since] they only offered impeachment evidence on collateral matters,
and as such, their testimony was not admissible.” Id.
The trial court abused its discretion in precluding Appellant’s proffered
rebuttal witnesses to refute A.A.’s testimony regarding the parties’
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relationship under the res gestae exception. First, as set forth above, in the
absence of an applicable exception, prior bad acts evidence is generally
collateral and not admissible to prove the commission of the alleged crimes
at issue. See Hicks, 151 A.3d at 225. Here, the trial court determined that
the res gestae evidence was relevant and material to the case under an
exception to the general prohibition of prior bad acts evidence. Once the
trial court found the evidence was material to explain the complete story, it
follows that Appellant should have been permitted to test the veracity of
A.A.’s version of events. As our Supreme Court concluded:
the admission of rebuttal testimony is within the sound
discretion of the trial court, and the appropriate scope of rebuttal
evidence is defined by the evidence that it is intended to rebut.
Where the evidence proposed goes to the impeachment of the
testimony of his opponent's witnesses, it is admissible as a
matter of right. Rebuttal is proper where facts discrediting the
proponent's witnesses have been offered.
Commonwealth v. Ballard, 80 A.3d 380, 401–402 (Pa. 2013) (internal
citations and quotations omitted). Accordingly, when the Commonwealth
offered evidence of Appellant’s prior bad acts against A.A., the scope of
Appellant’s rebuttal was limited only by A.A.’s testimony in that regard.
Thus, we conclude that the trial court abused its discretion by precluding
Appellant from calling witnesses to test A.A.’s credibility in describing
Appellant’s prior bad acts.
Because Appellant’s fourth issue also pertains to Rule 404(b) evidence,
we will examine that issue next. Appellant claims that the trial court abused
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its discretion by permitting the Commonwealth to admit two unrelated PFAs
(involving women other than A.A.) that the Commonwealth produced for the
first time on the fourth day of trial. Appellant’s Brief at 29-30. Appellant
contends that the Commonwealth failed to show good cause in offering these
PFAs mid-trial, when the case had been pending for over two years, and
therefore, was in violation of Rule 404(b)’s notice requirement. According to
Appellant, this violation caused him unfair surprise and prejudice. Id.
Hence, Appellant claims “[i]t was too great a risk [] to testify in light of the
[trial c]ourt’s ruling that he could be cross[-examined] on the two unrelated
PFAs if he ‘opened the door.’” Id. at 30.
Rule 404(b)(3) provides: “In a criminal case the prosecutor must
provide reasonable notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the general nature of any
such evidence the prosecutor intends to introduce at trial.” Pa.R.E.
404(b)(3) (emphasis added). Therefore, the Rule allows the court to excuse
pretrial notice for “good cause,” but does not define it. We previously noted
that with regard to notice, “good cause” is defined generally as a
substantial reason, one that affords a legal excuse. Legally
sufficient ground or reason. Phrase “good cause” depends upon
circumstances of [an] individual case, and finding of its existence
lies largely in [the] discretion of [an] officer or court to which
[the] decision is committed.... “Good cause” is a relative and
highly abstract term, and its meaning must be determined not
only by verbal context of statute in which term is employed but
also by context of action and procedures involved in type of case
presented.
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Anderson v. Centennial Homes, Inc., 594 A.2d 737, 739 (Pa. Super.
1991) (emphasis omitted), citing Black's Law Dictionary 623 (5th ed. 1979).
Here, the trial court found
that the Commonwealth demonstrated good cause for not
providing [] notice [of the unrelated PFAs], i.e. that it was not
aware of the evidence prior to the time of disclosure.
[..T]he PFA orders did not come to the Commonwealth’s
attention until during the trial. Obviously, [Appellant] was aware
of these orders without the Commonwealth’s assistance and
could have informed his defense counsel of their existence.
Therefore, the evidence would have been proper to allow on
cross[-]examination [of Appellant], although it was ultimately
not introduced because [Appellant] did not testify.
Trial Court Opinion, 4/13/2016, at 25 (footnote omitted).
We believe that the trial court abused its discretion in this regard.
Upon review of the record, the Commonwealth simply did not explain the
reason for the late discovery of the third-party PFAs and, therefore, did not
proffer a good cause. As the Commonwealth acknowledged, the third-party
PFAs were “accessible to anyone that care[d] to look for them.” N.T.,
1/15/2015, at 1090. Thus, the Commonwealth’s contention that it “just had
[the third-party PFAs] pulled from the [c]ourt system” mid-trial, when it
“just took a gander and punched [Appellant’s] name in” simply does not
qualify as a valid legal excuse. The Commonwealth could have discovered
the third-party PFAs through due diligence prior to trial and given Appellant
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proper notice to prepare his defense.8 Hence, we conclude that the trial
court abused its discretion in finding good cause for the Commonwealth’s
delayed disclosure.
Moreover, in addition to the Commonwealth’s failure to provide proper
notice of the third-party PFAs, we have concerns about whether those PFAs
met the substantive requirements of Rule 404(b). In Ivy, while we
specifically held that third-party PFAs could be entered into evidence under
Rule 404(b) to establish the existence of a common scheme, motive, intent,
plan, or identity, we also recognized that in so permitting prior bad acts
evidence, the trial court must compare the logical connection between the
prior bad acts evidence and the crimes charged. Ivy, 146 A.3d at 253. This
Court previously stated:
Under Pennsylvania law, evidence of prior bad acts is admissible
to prove “a common scheme, plan or design where the crimes
are so related that proof of one tends to prove the others.”
Commonwealth v. Elliott, 700 A.2d 1243, 1249 (Pa. 1997). In
Elliott, for example, the appellant was accused of sexually
assaulting and then killing a young woman he approached
outside a particular club (Purgatory) at 4:30 a.m. Our Supreme
Court affirmed a trial court's decision to permit three other
young women to testify that the appellant had similarly preyed
upon each of them as they were leaving the Purgatory club in
the early morning hours, and that he had then physically and/or
sexually assaulted them. Id. at 1250–51. Our Supreme Court
concluded that the “close similarity between these assaults” was
admissible to establish a common scheme, plan or design. Id.
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8
We further question whether Appellant’s awareness of the third-party PFAs
is even relevant to the Commonwealth’s “good cause” showing.
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* * *
The purpose of Rule 404(b)(1) is to prohibit the admission of
evidence of prior bad acts to prove “the character of a person in
order to show action in conformity therewith.” Pa.R.E. 404(b)(1).
While Rule 404(b)(1) gives way to recognized exceptions, the
exceptions cannot be stretched in ways that effectively eradicate
the rule. With a modicum of effort, in most cases it is possible to
note some similarities between the accused's prior bad conduct
and that alleged in a current case. To preserve the purpose of
Rule 404(b)(1), more must be required to establish an exception
to the rule—namely a close factual nexus sufficient to
demonstrate the connective relevance of the prior bad acts to
the crime in question. […T]his Court has warned that prior bad
acts may not be admitted for the purpose of inviting the jury to
conclude that the defendant is a person of unsavory character
and thus inclined to have committed the crimes with which
he/she is charged.
Commonwealth v. Ross, 57 A.3d 85, 103–105 (Pa. Super. 2012) (en
banc) (some citations and quotations omitted).
Upon review of the record, the trial court did not examine the
substance of the third-party PFAs proffered mid-trial to determine whether
the conduct was similar to the alleged crimes. Thus, the trial court never
identified a close factual nexus sufficient to demonstrate the connective
relevance of the third-party PFAs to the crimes in question. Moreover, the
certified record does not contain those third-party PFAs and, thus, we cannot
examine the content independently. It was an abuse of discretion for the
trial court to announce that it would allow the Commonwealth to use the
third-party PFAs upon cross-examination of Appellant without first
determining whether there was a close similarity with the evidence
presented in the case at hand. Accordingly, the trial court abused its
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discretion in granting the Commonwealth’s request to present the
third-party PFAs mid-trial without first assessing whether those PFAs met the
requirements of Rule 404(b).
In his second issue presented, Appellant argues that the trial court
abused its discretion by prohibiting him from re-calling A.A. after his mid-
trial discovery of three statements posted to A.A.’s Facebook page.
Appellant’s Brief at 12-14, 21-24. More specifically, within the month
subsequent to the incident at issue, Appellant averred that A.A. posted the
following statements on Facebook: (1) “I’m bulletproof;” (2) “Everything is
finally falling right into place,” and; (3) “This is a picture of my son. I am so
glad that we’ll be spending New Year’s together all by myself.” Id. at 12.
In precluding the above-mentioned Facebook statements, the trial
court determined that “there was no indication that these postings were
connected to the incident” and were “remote,” “vague,” and “in no way
exposed any false accusation or ulterior motive that would reflect upon
[A.A.’s] credibility.” Trial Court Opinion, 4/13/2016, at 40. The trial court
further determined that there was no reason to recall A.A., as she “testified
at length as to the events of the night of the incident” and “[g]reat latitude
was afforded to defense counsel on cross examination to address and attack
[] credibility.” Id.
Contrary to the trial court, Appellant maintains, “[t]hese postings were
directly probative of Appellant’s defense, that [A.A.] made up the allegations
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to gain advantage in the parties’ custody case.” Appellant’s Brief at 12.
Accordingly, Appellant argues that the trial court abused its direction in
precluding the proffered evidence as remote, more prejudicial than
probative, and serving only as a distraction to the jury. Id. at 13-14. He
claims that two of the proffered Facebook posts were posted six days after
the incident at issue and the third was posted 18 days later and, therefore,
they were not remote. Id. at 22. Appellant posits that “[c]onsideration of
prejudice is viewed with an eye towards the accused, not the accuser” and
“[t]he trial court never articulated what ‘prejudicial effect’ these posts would
have, how they would have a prejudicial effect, or on whom.” Id. at 22-23.
Appellant claims there would have been no distraction for the jury because
the Facebook posts “went directly to the issue of the parties’ custody battle
and [A.A.’s] motive to lie and credibility.” Id. at 24.
As noted earlier, admissibility of evidence is within the sound
discretion of the trial court, but it depends
on relevance and probative value. 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.
Evidence, even if relevant, may be excluded if its probative value
is outweighed by the potential prejudice.
Commonwealth v. Loughnane, 128 A.3d 806, 817–818 (Pa. Super.
2015). “We likewise review a trial court's decision to grant a party's request
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to reopen the record for an abuse of discretion.” Commonwealth v.
Schultz, 116 A.3d 1116, 1119 (Pa. Super. 2015) (citation omitted).
Here, upon review, we agree with the trial court’s assessment and
discern no abuse of discretion. Although the Facebook posts were made
close in time to the incident at issue, the probative value in showing that
A.A.’s desire to prevail in the custody dispute with Appellant motivated her
to manufacture claims against Appellant was remote and vague. The
proffered Facebook posts never mention Appellant specifically, nor the
parties’ custody dispute, and could conceivably refer to any number of
matters. The posts simply do not support a reasonable inference or
presumption regarding a material fact of whether the sexual assaults
occurred. Thus, the evidence was not relevant and properly excluded.
In his third issue presented, Appellant avers, “[t]he Commonwealth
offered and the trial [court] admitted the opinion testimony of emergency
room physician Tuan-Ahn Lee Ung, M.D., that markings on the wrists and
ankles of A.A. were consistent with ligature and strangulation marks.”
Appellant’s Brief at 25. In sum, he argues:
First, there was a question as to whether Dr. Ung was an expert
as to issues of strangulation and ligature markings. An
emergency department physician is not automatically nor
necessarily an expert as to strangulation and ligature markings.
Secondly, if [Dr.] Ung qualified as an expert in this area, []
Appellant was entitled to an [e]xpert [r]eport pre-trial, as well as
a [curriculum vitae (CV)] which contained [Dr.] Ung’s
qualifications and credentials to give opinions on strangulation
and ligature. Third, upon [the] Commonwealth[’s] production of
an [e]xpert [r]eport and CV, [] Appellant had the right to file a
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Frye motion, or otherwise challenge Dr. Ung, pre-trial. Fourth,
Pennsylvania Rule of Evidence 701(c) explicitly prohibits experts
giving expert opinions and testimony under the guise of being
lay witnesses[.]
Id. at 26 (emphasis omitted).9
The law on the admissibility of expert testimony is well settled:
Pennsylvania Rule of Evidence 702 permits expert testimony on
subjects concerning knowledge beyond that possessed by a
layperson. It is the job of the trial court to assess the expert's
testimony to determine whether the expert's testimony reflects
the application of expertise or strays into matters of common
knowledge. We have explained:
Admissible expert testimony that reflects the
application of expertise requires more than simply
____________________________________________
9
As previously noted, Appellant does not specifically challenge the trial
court’s preclusion of his proffered expert, Dr. Wecht. The trial court found
that Dr. Wecht did not render his opinion within a reasonable degree of
medical certainty and impermissibly commented on A.A.’s credibility. Trial
Court Opinion, 4/13/2016, at 16-18. On appeal, Appellant posits that it was
error to permit the Commonwealth to elicit expert testimony from the
hospital staff lay witnesses when “Appellant [was] not permitted to call Dr.
Wecht, an actual expert on strangulation and ligature [marks], who had
prepared a report which was furnished pre-trial to the Commonwealth[.]”
Appellant’s Brief at 29. Upon review, Appellant failed to include a challenge
to the preclusion of Dr. Wecht’s testimony in his statement of questions
involved or in a separate argument section of his brief. See Pa.R.A.P.
2111(a); see also Pa.R.A.P. 2119. “Appellate arguments which fail to
adhere to [our] rules [of appellate procedure] may be considered waived,
and arguments which are not appropriately developed are waived.
Arguments not appropriately developed include those where the party has
failed to cite any authority in support of a contention.” Karn v. Quick &
Reilly Inc., 912 A.2d 329 (Pa. Super. 2006). Moreover, Appellant baldly
claims, “the trial judge should have permitted [Dr.] Wecht to testify with
caution that he could not comment on the credibility of [A.A.]” Appellant’s
Brief at 29. However, because he cites no legal authority to support this
contention, we find it waived. Accordingly, we need not address the trial
court’s ruling regarding the preclusion of Dr. Wecht.
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having an expert offer a lay opinion. Testimony does
not become scientific knowledge merely because it
was proffered by a scientist. Likewise, expert
testimony must be based on more than mere
personal belief, and must be supported by reference
to facts, testimony or empirical data.
Accordingly, we have stated the following test to distinguish
between admissible expert testimony and inadmissible lay
testimony by an expert:
The exercise of scientific expertise requires inclusion of scientific
authority and application of the authority to the specific facts at
hand. Thus, the minimal threshold that expert testimony must
meet to qualify as an expert opinion rather than merely an
opinion expressed by an expert, is this: the proffered expert
testimony must point to, rely on or cite some scientific
authority—whether facts, empirical studies, or the expert's own
research—that the expert has applied to the facts at hand and
which supports the expert's ultimate conclusion. When an expert
opinion fails to include such authority, the trial court has no
choice but to conclude that the expert opinion reflects nothing
more than mere personal belief.
Nobles v. Staples, Inc., 150 A.3d 110, 114–115 (Pa. Super. 2016)
(internal citations and quotations omitted).
Moreover, Pennsylvania Rule of Evidence 703 provides:
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.
Under this rule,
expert testimony is incompetent if it lacks an
adequate basis in fact. While an expert's opinion
need not be based on absolute certainty, an opinion
based on mere possibilities is not competent
evidence. This means that expert testimony cannot
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be based solely upon conjecture or surmise. Rather,
an expert's assumptions must be based upon such
facts as the jury would be warranted in finding from
the evidence.
Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa.
Super. 2012). While an expert need not use “magic words,” the
foundation of her opinion must still be sturdy. As our Supreme
Court has emphasized, the expert must base the substance of
her opinion on a reasonable degree of certainty instead of mere
speculation. Commonwealth v. Spotz, 756 A.2d 1139, 1150
(Pa. 2000) (forensic pathologist's testimony in first-degree
murder trial as to victim's manner of death was properly based
on reasonable degree of medical certainty, though pathologist
did not use those “magic words,” where pathologist explained
that victim had been shot in neck and chest, that amount of
hemorrhage surrounding gunshot wounds indicated she was shot
while she was alive, and that minimal hemorrhage surrounding
other wounds indicated she was run over after she died).
Commonwealth v. Gonzalez, 109 A.3d 711, 726–727 (Pa. Super. 2015)
(parallel citations omitted). “The expert has to testify that in his
professional opinion the result in question came from the cause alleged. A
less direct expression of opinion falls below the required standard of proof
and does not constitute legally competent evidence.” Commonwealth v.
Davido, 868 A.2d 431, 441 (Pa. 2005) (internal citation omitted).
We find that the trial court abused its discretion in allowing the
Commonwealth to elicit what amounted to expert trial testimony from the
emergency room nurse, Tiffany Taylor (Nurse Taylor), and emergency room
doctor, Dr. Ung, whom the Commonwealth failed to designate as experts
prior to trial.
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Pennsylvania Rule of Evidence 701 provides that “[i]f a witness is not
testifying as an expert, testimony in the form of an opinion is limited to one
that is: (a) rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining a fact in
issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Pa.R.A.P. 701.
Rule of Evidence 702, pertaining to expert witnesses, states:
If scientific, technical or other specialized knowledge beyond that
possessed by a layperson will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training or education may testify thereto in the form of an
opinion or otherwise.
Pa.R.E. 702. Our Supreme Court previously noted that “[t]he average
layperson is generally unacquainted with the physical processes
accompanying ligature strangulation[.]” Commonwealth v. Lopez, 854
A.2d 465, 470 (Pa. 2004).
Moreover, this Court recently determined:
Unlike civil cases, there are no specific procedural rules
governing expert reports in criminal cases aside from
Pa.R.Crim.P. 573, which relates to discovery. The rule requires
the Commonwealth to turn over the results of expert opinions in
its possession or control. Specifically, Pa.R.Crim.P. 573(B)(1)(e)
reads:
(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which
the Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant's
attorney all of the following requested items or
information, provided they are material to the
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instant case. The Commonwealth shall, when
applicable, permit the defendant's attorney to
inspect and copy or photograph such items.
* * *
(e) any results or reports of scientific tests, expert
opinions, and written or recorded reports of
polygraph examinations or other physical or mental
examinations of the defendant that are within the
possession or control of the attorney for the
Commonwealth;
Additionally, Pa.R.Crim.P. 573(D) provides that both parties have
a continuing duty to disclose evidence that is requested prior to
trial that is subject to disclosure.
Commonwealth v. Roles, 116 A.3d 122, 131 (Pa. Super. 2015).
Finally, we note that this Court also determined that the rules
governing expert and lay testimony do not preclude a single witness from
testifying, or offering opinions, in the capacity as both a lay and an expert
witness on matters that may embrace the ultimate issues to be decided by
the fact-finder. See Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super.
2013). “[T]he witness' association to the evidence controls the scope of
admissible evidence that he or she may offer.” Id. at 967. “In order to
avoid jury confusion, the trial court [should] direct[] the Commonwealth to
clarify when [] testimony, given in the form of an opinion, was based upon
[] expert knowledge [], as opposed to [] testimony regarding the facts as
personally perceived[].” Id. at 973. As we further made clear in Huggins,
should a single witness testify in dual capacities, the trial court must instruct
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“the jurors regarding lay versus expert testimony and [tell] them that they
[are] solely responsible for making credibility determinations.” Id.
Initially, we note that there is no dispute that the Commonwealth did
not disclose any expert reports prior to trial. At the hearing on the
Commonwealth’s motion to preclude Dr. Wecht from testifying as an expert,
the Commonwealth specifically stated that it did not intend to present expert
testimony. Instead, the Commonwealth intended to call emergency room
personnel “testifying as fact witnesses as to what they saw when they
treated” A.A. or, in other words, as to “their actual findings[.]” N.T.,
12/1/2014, at 13, 8. Moreover, in response to Appellant’s request for expert
reports from Nurse Taylor and Dr. Ung, the Commonwealth explicitly stated:
We have never produced reports from fact witnesses that are
doctors or nurses that are treating rape victims who come into
the emergency room. Their medical reports are the reports of
what they saw and what they observed.
Beyond that, we have never produced anything more than that.
They are there to testify as to what – if they saw a cut, if they
saw a ligature mark. The description of what the victim
appeared to look like.
They are there as fact witnesses. They’re not making a decision
of, oh, yes, this victim was raped. Or, oh, yes, that was
[Appellant] who pummeled her in the head that caused the
bruising. They’re there as to what they saw. They’re not
creating an expert report.
Id. at 14. The trial court permissibly allowed Nurse Taylor and Dr. Ung to
describe the injuries that they personally observed when treating A.A., most
notably ligature and strangulation marks. Thus, as long as the
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Commonwealth was relying solely upon lay witness testimony from Nurse
Taylor and Dr. Ung, it was permissible.
However, the Commonwealth then asked each witness whether A.A.’s
account of events was consistent with her injuries. See N.T., 1/14/2015, at
622-623, 638-643. These conclusions required causation expertise10 and
there was no proffered evidence that Dr. Ung or Nurse Taylor regularly
examined ligature and strangulation marks or had scientific knowledge on
the subject. As a result, the trial testimony of Dr. Ung and Nurse Taylor
blurred the line between factual, lay-witness observations and expert
testimony requiring specialized knowledge. Dr. Ung and Nurse Taylor
properly testified regarding their personal observations of what they saw at
the hospital. However, they also testified regarding the cause of A.A.’s
injuries, which required specialized knowledge. While the hospital staff
members in this case could have testified as both lay and expert witnesses
under Huggins, the Commonwealth did not provide notice or expert reports
to Appellant prior to trial and there were no additional safeguards employed
by the trial court to ensure that the jurors could separate expert opinions
from the lay testimony. Hence, we discern the trial court abused its
discretion and erred as a matter of law in permitting proffered lay witnesses
to offer expert opinions at trial.
____________________________________________
10
Even the trial court stated at trial, “There is no question that Dr. Ung is
an expert[,] is there?” N.T., 1/14/2015, at 630.
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Finally, Appellant argues that the cumulative effect of all the erroneous
evidentiary rulings deprived him of a fair trial. Appellant’s Brief at 32. Our
Supreme Court decided:
Although a perfectly conducted trial is indeed the ideal objective
of our judicial process, the defendant is not necessarily entitled
to relief simply because of some imperfections in the trial, so
long as he has been accorded a fair trial. A defendant is entitled
to a fair trial but not a perfect one. If a trial error does not
deprive the defendant of the fundamentals of a fair trial, his
conviction will not be reversed.
Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa. 2014).
Moreover,
[a]n error may be harmless where the properly admitted
evidence of guilt is so overwhelming and the prejudicial effect of
the error is so insignificant by comparison that it is clear beyond
a reasonable doubt that the error could not have contributed to
the verdict. […] [T]he judgment of sentence will be affirmed in
spite of the error only where the reviewing court concludes
beyond a reasonable doubt that the error did not contribute to
the verdict.
Id. at 1172. The Commonwealth has the burden of proving harmless error
beyond a reasonable doubt. Poplawski, 130 A.3d at 716.
Here, we cannot conclude beyond a reasonable doubt that the
culmination of errors could not have contributed to the verdict. In sum, the
trial court: (1) improperly prohibited Appellant from calling witnesses to
rebut the Commonwealth’s Rule 404(b) evidence; (2) impermissibly
permitted the prosecution to use third-party PFAs discovered mid-trial
without good cause (and without conducting a substantive Rule 404(b)
analysis) which, in turn, influenced Appellant not to testify in his own right,
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and; (3) allowed lay witnesses for the Commonwealth to testify regarding
expert opinions without first providing notice or expert reports and without
the trial court providing safeguards to assure the jury could differentiate
between lay and expert testimony. We conclude that the prejudicial effect of
these erroneous evidentiary rulings were significant and deprived Appellant
of a fair trial.
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2017
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