J-S43001-17
2017 PA Super 353
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN DAVID WOEBER
Appellant No. 721 WDA 2016
Appeal from the Judgment of Sentence April 15, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-009746-2015
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN DAVID WOEBER
Appellant No. 1289 WDA 2016
Appeal from the Order July 22, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-0009746-2015
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
OPINION BY STABILE, J.: FILED NOVEMBER 9, 2017
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S43001-17
Appellant, John David Woeber, appeals from the judgment of
sentence imposed on April 15, 2016, in the Court of Common Pleas of
Allegheny County following his convictions of rape, sexual assault, and
related crimes,1 all stemming from events involving A.R. when she was
between 12 and 14 years old. Appellant also appeals from the order entered
on July 22, 2016, adjudicating him a sexually violent predator (“SVP”). By
order entered on December 16, 2016, we consolidated the appeals.2 For
____________________________________________
1
Appellant’s convictions included one count each of rape, unlawful contact
with a minor, indecent assault—person less than 13 years of age, indecent
exposure, unlawful contact with a minor, indecent assault—person less than
16 years of age, corruption of minors, and endangering the welfare of
children. 18 Pa.C.S.A. §§ 3121(c), 6318(a)(1), 3126(a)(7), 3127(a),
6318(a)(1), 3126(a)(8), 6301(a), and 4304(a)(1), respectively.
2
As noted, Appellant filed two separate appeals. His appeal from the April
15, 2016 judgment of sentence was filed prior to this Court’s decision in
Commonwealth v. Schrader, 141 A.3d 558 (Pa. Super. 2016). In
Schrader, we held that when a defendant waives a pre-sentence SVP
determination, his judgment of sentence is not final until the SVP
determination is rendered. Id. at 561. Here, Appellant waived his right to a
pre-sentence SVP hearing. See Notes of Testimony (“N.T.”), SVP Hearing,
7/22/16, at 4. He then filed a separate notice of appeal from the SVP order.
Since Appellant filed appeals to preserve the issues raised with respect to
both orders, we find we have jurisdiction to consider these appeals, even
though post-Schrader, only a single notice of appeal would have been
necessary once the SVP determination was made thereby making the
judgment of sentence final as of that time. By order entered December 16,
2016, we granted Appellant’s motion to consolidate the appeals pursuant to
Pa.R.A.P. 513.
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the reasons stated herein, we vacate the judgment of sentence and remand
for further proceedings.
Appellant asks us to consider four issues, which we have reordered for
ease of discussion:
I. Whether the [t]rial [c]ourt erred by excluding highly
exculpatory and contradictory testimony from the accuser
in this case, where the case turned on the accuser’s
credibility and where the exclusion of such testimony ran
afoul of [Appellant’s] right to confront and cross-examine
witnesses against him.[3]
II. Whether the [t]rial [c]ourt erred in concluding that
[Appellant] qualified as a sexually violent predator where
the court relied upon contradictory evidence in finding that
[Appellant] suffered from a specific mental abnormality.
III. Whether the prosecutor’s improper vouching for the
accuser in this case so prejudiced [Appellant] that the jury
was unable to render a fair and impartial verdict in this
case.
IV. Whether the [t]rial [c]ourt abused its discretion by denying
[Appellant’s] request for a new trial, or, in the alternative,
in ruling on the request without an evidentiary hearing.
Appellant’s Brief at 4.
In his first issue, Appellant presents a challenge to the trial court’s
ruling on admissibility of evidence. As our Supreme Court has explained,
“[t]he admissibility of evidence is a matter solely within the discretion of the
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3
The Commonwealth contends Appellant has waived two of the three
subparts of his issue. See Commonwealth Brief at 13. We disagree, finding
that the specific claims in Appellant’s brief are subsidiary to the error alleged
in Appellant’s Rule 1925(a) statement relating to attempts to cross-examine
A.R. about her alleged statement to La. See Pa.R.A.P. 1925(b)(4)(v).
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trial court. This Court will reverse an evidentiary ruling only where a clear
abuse of discretion occurs.” Commonwealth v. Johnson, 638 A.2d 940,
942 (Pa. 1994) (citation omitted)). “Generally, an appellate court’s standard
of review of a trial court’s evidentiary rulings is whether the trial court
abused its discretion; however, where the evidentiary ruling turns on a
question of law our review is plenary.” Buckman v. Verazin, 54 A.3d 956,
960 (Pa. Super. 2012) (citations omitted).
In order to examine the propriety of the trial court’s evidentiary ruling,
we must consider the factual background of this case. Having reviewed the
record, we find the trial court fairly summarized the trial testimony as
follows:
At trial, the victim in this case, fifteen year old [A.R.]
testified that in 2013, while she was twelve years old, she was
friends with [La. and Li.] Woeber, two daughters of Appellant,
John Woeber.[4] [A.R.] testified that she went to [Li.’s] birthday
party in the spring of 2013. She testified that Appellant had
sexual intercourse with her against her will at the party. She
stated that she was invited over for salmon ([Li.’s] favorite
meal) and cake. After dinner, others present were drinking
alcohol but [A.R.] was not until [Li.] gave [A.R.] a drink that
[A.R.] did not know contained alcohol. Shortly after drinking the
one cup that [Li.] gave [A.R.], [A.R.] was accosted in Appellant’s
residence by a group of boys. The boys tried to pull her clothes
off. Appellant interceded and stopped the boys from doing
anything further to [A.R.]. The boys left the apartment, along
with [La. and Li.], leaving Appellant and [A.R.] alone in
Appellant’s apartment. [A.R.] fell asleep on the couch, and was
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4
La. was in A.R.’s grade in school. Li. was two grades ahead of them. The
birthday party was for Li.’s 14th birthday, which was March 17, 2013.
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awoken by Appellant, who told her to go to his bedroom to
process what had happened to her. She was able to walk to his
bedroom but “felt like everything was a little bit blurry.” Once
she reached Appellant’s bedroom, Appellant got on top of her
and tried to take her clothes off. [A.R.] stated that she told him
no and he left for a minute or two into the bathroom. When
Appellant came back into the room, wearing only boxers, he got
on top [of] her again, removed her shorts and underwear and
his boxers, and had sexual intercourse with her. [A.R.] stated
that she does not remember what happened after that, until she
awoke the next morning on Appellant’s bed wearing only her
tank top.
[A.R.] further testified to a prior incident in the Woeber
home. She stated that she was hanging out with [La. and Li.] at
their house. In the middle of the night, Appellant came into the
bathroom while [A.R.] was washing her hands. She testified
that he pushed her up against the vanity, touched her breasts
and groped her. She did not tell anyone about this incident
because she felt scared and in disbelief.
After the second incident, Appellant, [La. and Li.] moved
back to Alaska for approximately six months.[5] Upon their
return, [A.R.] resumed her friendship with [La. and Li.] and
again frequented the Woeber residence. [A.R.] testified that she
attended a party there when she was thirteen years old. [A.R.]
stated that Appellant supplied her and other underage attendees
with alcohol and had sexual intercourse with her on the couch
that night. He undressed her and penetrated her vagina with his
penis. She didn’t tell anyone what happened because she didn’t
want to answer questions about why she returned to the Woeber
household. She testified that she had returned to the home
because she was told Appellant would not be in the home and
she wanted to remain friends with [Li. and La.]. After the third
incident, [A.R.] experienced panic attacks and struggled
academically. [A.R.] disclosed the abuse to her school guidance
counselor in the spring of 2015.
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5
Appellant and Li. testified that the move to Alaska took place in June 2013,
at the end of the school year. The family moved back to Pittsburgh in the
fall of 2013, around Thanksgiving. N.T. Trial, 1/14/16, at 152, 156, 181-82.
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[Li. and La.] both testified on behalf of their father. [Li.]
denied any underage drinking and said she never saw or heard
any inappropriate sexual contact between Appellant and [A.R.].
[La.] also denied underage drinking at [Li.’s] party. She testified
that nothing unusual happened that night. She further testified
that the second party testified to by [A.R.], where [A.R.] said
Appellant raped her a second time, simply never happened.
Lastly, Appellant denied ever touching [A.R.]
inappropriately. He also denied ever having permitted boys into
his home or providing alcohol to minors.
Rule 1925(a) Opinion, 11/15/16, at 4-5 (references to Notes of Testimony
omitted).
The alleged prior inconsistent and exculpatory statement attributed to
A.R. is her statement to La. that “two other boys” raped her at Li’s birthday
party. N.T. Trial, 1/13/16, at 78. On direct examination, the prosecutor
asked A.R. if she ever spoke with La. or Li. about the parties. Id. at 52.
A.R. responded, “Yeah. They had said that they didn’t remember any party
happening.” Id.
On cross-examination, the following exchange took place between
Appellant’s counsel and A.R.:
Q. So you were asking [La.] about, you say, the party that
happened at their house, and she said, “What party?” Right?
A. Yeah. She denied it.
Q. You didn’t tell her that something happened at that party
where her father had raped you, did you?
A. No.
Q. Did you tell her, in fact, that other boys had raped you at
that party?
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A. No.
Q. You don’t remember saying that to her?
Id. at 77. At that point, the prosecutor objected, claiming rape shield. 6 A
sidebar discussion followed, during which Appellant’s counsel explained his
intention to call La. to testify that—following the Woeber family’s return from
Alaska—“[A.R.] had said to her, you know, ‘Something happened at this
party at your house,’ and that she said, ‘I was raped by two other boys.’”
Id. at 78. Appellant’s counsel contended that A.R. was accusing someone
else of committing the rape that she accused Appellant of committing on the
____________________________________________
6
The Rape Shield Law, 18 Pa.C.S.A. § 3104 (Evidence of victim’s sexual
conduct), provides:
(a) General rule.--Evidence of specific instances of the alleged
victim’s past sexual conduct, opinion evidence of the alleged
victim’s past sexual conduct, and reputation evidence of the
alleged victim’s past sexual conduct shall not be admissible in
prosecutions under this chapter except evidence of the alleged
victim’s past sexual conduct with the defendant where consent of
the alleged victim is at issue and such evidence is otherwise
admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.--A defendant who proposes to
offer evidence of the alleged victim’s past sexual conduct
pursuant to subsection (a) shall file a written motion and offer of
proof at the time of trial. If, at the time of trial, the court
determines that the motion and offer of proof are sufficient on
their faces, the court shall order an in camera hearing and shall
make findings on the record as to the relevance and admissibility
of the proposed evidence pursuant to the standards set forth in
subsection (a).
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night of Li.’s party. He also argued that rape shield was inapplicable
because it was not A.R.’s sexual conduct at issue but, rather, a prior sexual
assault. Id. at 78-79.
The trial court announced a recess and continued the discussion with
counsel in open court. The trial court advised Appellant’s counsel that
advance notice of the issue would have been appreciated so that the trial
court could have conducted an in camera hearing as required by
Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985). See also 18
Pa.C.S.A. § 3104(b). Appellant’s counsel responded that his review of the
law indicated that he was not presenting a rape shield issue but an issue of
credibility. The trial court responded that the question was “close to the
line” and that counsel should have made a proffer that would have led the
court to hold a § 3104(b) evidentiary hearing. The court cited
Commonwealth v. Fink, 791 A.2d 1235 (Pa. Super. 2002), for the
proposition that prior sexual conduct involving a prior sexual assault does
not trigger the Rape Shield Law and that the evidence is to be evaluated
under general evidence admissibility criteria. N.T. Trial, 1/13/16, at 86.
However, the court again noted that counsel should have made a proffer to
the court so the court could determine whether rape shield applies. Id.
The prosecution argued the defense was engaged in a veiled attempt
to pierce the Rape Shield Law. Id. at 87. The court announced its intention
to sustain the objection, strike the question from the record, and leave it up
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to the defense to question La. in its case-in-chief. The prosecution could
then call A.R. on rebuttal to affirm or deny the allegation. Id. at 91.
At that point, for reasons unrelated to the case, the trial court
dismissed the jurors for the day. When the trial court met with counsel the
following morning, further discussion ensued regarding rape shield. The trial
court noted that, based on the understanding that the statement concerning
the rape by two boys referred to events on the same night A.R. claimed
Appellant assaulted her, “it is highly probative with regard to credibility and
not excluded by rape shield.” Id. at 97.
The prosecution complained that there were no interviews with A.R.
addressing her alleged conversation with La. Id. at 98. The trial court
reiterated that a § 3104(b) motion in limine should have been filed so that
the issue could have been resolved following an in camera hearing. Id. at
98-99. Ultimately, the trial court determined that the objection would be
sustained, cross-examination of A.R. would continue, and the issue would be
addressed again if it came up during the defense case. Id. at 102.
In the defense case, Li. testified first. She explained that the only
people with her at her birthday party were her father, her sister La., and
A.R. She indicated that her father was “really strict back then” and “would
never let us have boys over.” Id. at 142. She also stated that no one was
drinking and that when A.R. left the following day, she did not say anything
about anything unusual happening the night before. Id. at 142-43. Li. later
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repeated those responses. Id. at 151-52. She also testified that she never
heard anything about A.R. being raped at either of her family’s apartments
or about A.R. being sexually assaulted in the bathroom of their old
apartment. Id. at 153-54.
La. testified next. She explained that she and A.R. were very close
and recalled that A.R. spent the night after Li.’s birthday party in 2013. Id.
at 162-63. She said “nothing unusual happened so nothing stuck out to
really remember” about that night. Id. at 163. She testified that there
were no boys or alcohol in the apartment and that A.R. never mentioned
that anything happened that night. Id. at 164-65. She explained that after
she returned from Alaska, she and A.R. maintained their friendship for
another three or four months before it “faded.” Id. at 165. La. also testified
that when A.R. mentioned a party at La.’s house, La. responded that “there
was no party.” Id. La. could not recall A.R. being at her apartment after
the Woebers returned from Alaska. Id. at 166.
Following deliberations, the jury returned a verdict of guilty on the
charges listed above.7 The trial court sentenced Appellant to 180 to 400
months in prison for rape, with consecutive probation of five years for
____________________________________________
7
See n. 1. Appellant was acquitted of two counts of selling or furnishing
liquor to minors, statutory sexual assault, and one count of indecent
exposure.
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unlawful contact with a minor. The court did not impose any further penalty
on the remaining convictions.
Appellant argues that the exclusion of A.R.’s purported statement—
accusing other boys of raping her on the night of Li.’s party—constitutes the
exclusion of exculpatory and inconsistent testimony by his accuser, violating
his confrontation rights. As stated above, while we generally employ an
abuse of discretion standard to admissibility issues, our review is plenary
where, as here, the evidentiary ruling turns on a question of law.
Buckman, 54 A.3d at 960.
Our Supreme Court has recognized that “[t]he Sixth Amendment
guarantees criminal defendants the right to confront and cross-examine
adverse witnesses” in order “to ensure a fair and reliable trial.”
Commonwealth v. Laird, 988 A.2d 618, 630 (Pa. 2010); U.S. Const.
amend. VI (additional citations omitted). “Cross-examination may be
employed to test a witness’ story, to impeach credibility, and to establish a
witness’s motive for testifying.” Commonwealth v. Ballard, 80 A.3d 380,
394 (Pa. 2013) (quoting Commonwealth v. Chmiel, 889 A.2d 501, 527
(Pa. 2005) (citation omitted)). “A trial court has discretion to determine
both the scope and the permissible limits of cross-examination. The trial
judge’s exercise of judgment in setting those limits will not be reversed in
the absence of a clear abuse of that discretion, or an error of law.
Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa. 2011) (quotations and
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citations omitted). “It is certainly within the scope of cross-examination to
ask the witness if she ever made a statement inconsistent with her
testimony in court.” Chmiel, 889 A.2d at 542 (citing Pa.R.E. 613).8
Again, this Court has recognized that “[i]f the prior sexual conduct was
a prior sexual assault, then the Rape Shield Law does not apply and the
evidence is evaluated under the general evidentiary rules.” Fink, 791 A.2d
at 1242 (citing Johnson, 638 A.2d 940 (Pa. 1994)9). In Johnson, our
Supreme Court reiterated that “[e]vidence is relevant when the inference
sought to be raised by the evidence bears upon a matter in issue in the case
and, second, whether the evidence renders the desired inference more
probable than it would be without the evidence.” Id. at 942 (internal
quotation and citation omitted). Therefore, because rape shield does not
apply to a prior sexual assault on A.R., the question here becomes whether
A.R.’s response on cross-examination—had the objection been overruled—
coupled with La.’s anticipated testimony about A.R.’s statement in the
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8
The Commonwealth contends the trial court’s ruling was based on the lack
of foundation for A.R.’s statement, claiming A.R. testified that she never
disclosed the March 2013 sexual assault before revealing it to her guidance
counselor in 2015. Commonwealth Brief at 19. In fact, A.R. testified that
the guidance counselor was the first person she told “in detail.” N.T. Trial,
1/13/16, at 73.
9
Our Supreme Court explained that “[t]o be a victim is not ‘conduct’ of the
person victimized. It would be illogical to conclude that the Rape Shield Law
intended to prohibit this type of testimony.” Johnson, 638 A.2d at 942.
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defense case, would be relevant to a material fact in issue and probative of
A.R.’s credibility. See also Commonwealth v. Schley, 136 A.3d 511, 518
(Pa. Super. 2016) (under Johnson’s “relevant and material” test, proffered
evidence was probative of an element of the crime and relevant to the
accuser’s credibility). We conclude that the testimony is relevant to a
material fact in issue in this case, i.e., the issue of whether someone other
than Appellant raped A.R. on the night of Li.’s party, and is relevant to the
issue of A.R.’s credibility. Further, that evidence would support an inference
that someone other than Appellant raped A.R., and would clearly make that
inference more probable than it would be without the evidence. See
Johnson, 638 A.2d at 942. As Appellant argues,
Here, the proffered evidence goes directly to the heart of the
Commonwealth’s case insofar as [A.R.’s] statement made it
much less likely that [Appellant] was the one who assaulted her
on the night of the party. Specifically, it suggested that “two
other boys” raped her at the party—and in turn supports the
strong inference that [Appellant] was not the person who raped
her. Moreover, by presenting a potentially inconsistent prior
statement, the proffered evidence also undermined [A.R.’s]
credibility.
Appellant’s Brief at 23 (citations omitted).
While we agree with the trial court’s conclusion that the alleged sexual
assault by “two other boys” did not trigger the Rape Shield Law, we find the
court committed an error of law by sustaining the Commonwealth’s objection
during cross-examination of A.R., and erred by failing to evaluate the
evidence concerning A.R.’s statement under traditional evidentiary rules.
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Had it done so, the court would have had the opportunity to consider
whether the evidence made it less likely that Appellant assaulted A.R. As a
result of the court’s error, there is nothing in the record to suggest that A.R.
told La. that two boys raped her at Li.’s party, other than the sidebar
statement made by Appellant’s counsel. Further, there is nothing of record
to suggest that La. would testify that A.R. claimed two boys raped her.
We find the trial court erred by sustaining the Commonwealth’s
objection. In doing so, the trial court violated Appellant’s confrontation
rights because it barred the cross-examination of A.R. about a prior
statement implicating assailants other than Appellant. In addition, it put
Appellant’s counsel in the position of trying to raise the issue in the defense
case-in-chief without a foundation for doing so and in the face of inevitable
hearsay objections. Therefore, we are compelled to vacate Appellant’s
judgment of sentence and remand for a hearing.
As for the proceedings on remand, we find guidance in this Court’s
decision in Commonwealth v. Eck, 605 A.2d 1248 (Pa Super. 1992), a
case in which the appellant claimed his confrontation rights were violated by
the court’s decision to withhold materials relating to his accuser. Because
the trial court had not placed on the record any findings or conclusions
relating to its in camera review of the records, we directed on remand that
the trial court conduct in camera proceedings after which the trial court
could grant a new trial or reinstate the judgment of sentence. Id. at 1256.
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Our Supreme Court adopted this procedure in Commonwealth v.
Ruggiano, 26 A.3d 473 (Pa. 2011) (per curiam) (citing Eck). In
Ruggiano, as in the case before us, the victim’s past sexual conduct was
not at issue. Therefore, the Rape Shield Law does not apply and the trial
court must determine whether the evidence sought to be admitted as to A.R.
is admissible under the traditional rules of evidence. Id. (citing Johnson,
638 A.2d at 942).
Accordingly, we direct the trial court on remand to conduct in camera
proceedings for the limited purpose of determining whether A.R. would deny
telling La. that two boys raped her at Li.’s party and whether La. would
testify that A.R. made such a statement. In the event the trial court finds
A.R. and/or La. would offer such testimony, the court should then consider
whether that testimony is admissible under traditional evidentiary rules. If
the testimony is admissible, the trial court shall grant a new trial and permit
cross-examination of A.R. concerning the purported statement. If A.R.
denies making the statement and La. denies that A.R. claimed she was
raped by other assailants, or if the trial court determines their testimony is
inadmissible, the trial court shall reinstate the judgment of sentence.
If the trial court grants a new trial, Appellant’s remaining issues
become moot. However, recognizing that the trial court could potentially
reinstate the judgment of sentence, we shall address those issues.
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In his second issue, Appellant challenges the trial court’s
determination that he is an SVP. In Commonwealth v. Schrader, 141
A.3d 558 (Pa. Super. 2016), this court explained:
It is well-settled that an SVP order is a non-punitive collateral
consequence of the criminal sentence. Commonwealth v.
Harris, 972 A.2d 1196, 1201 (Pa. Super. 2009). . . . “[T]he
imposition of SVP status is a component of the judgment of
sentence even though the ultimate collateral consequences are
non-punitive.” Harris, supra, at 1201 (emphasis added).
Id. at 561-62. By vacating Appellant’s judgment of sentence, we also have
vacated the July 22, 2016 SVP order that constituted a component of that
judgment of sentence. In light of the possibility the trial court on remand
could reinstate the judgment of sentence, we consider Appellant’s challenge
to his SVP designation.
As a challenge to the sufficiency of evidence supporting an SVP
designation, Appellant presents a question of law; “thus, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Meals, 912 A.2d 213, 218 (Pa. 2006) (internal quotation and citation
omitted)). “In conducting [a] sufficiency review, we must consider the
evidence in the light most favorable to the Commonwealth, which prevailed
upon the issue at trial.” Id. (citation omitted). The task of this Court “is
one of review, and not of weighing and assessing evidence in the first
instance.” Id. at 223.
In Meals, our Supreme Court recognized that the Commonwealth
must prove SVP status to the trial court by clear and convincing evidence;
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that the defense has the opportunity to challenge the Commonwealth’s
evidence and to present its own evidence; and that the trial court may reject
the Commonwealth’s evidence. Id. at 224. The “clear and convincing”
standard falls between the criminal “beyond a reasonable doubt” standard
and the civil “preponderance of the evidence” standard. Id. at 219. The
“clear and convincing” standard is typically defined as follows: “The clear
and convincing standard requires evidence that is ‘so clear, direct, weighty,
and convincing as to enable the [trier of fact] to come to a clear conviction,
without hesitancy, of the truth of the precise facts [in] issue.’” Id. (quoting
Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa. 2003) (citations
omitted)).
Appellant complains that the trial court erred by relying solely upon
A.R.’s age at the time of the first two incidents in rendering its SVP
determination. He complains that “this reliance ignored the ambiguous
testimony offered by [the Commonwealth’s expert] at the SVP hearing with
respect to what facts are necessary for a diagnosis of pedophilia,” and falls
short of the clear and convincing standard. Appellant’s Brief at 35. He
further contends that despite the fact A.R. was twelve at the time of the first
two incidents, there is no evidence to support a finding that she was
“prepubescent.” Id. at 37. We cannot agree.
In his statement of errors complained of on appeal, Appellant simply
asserted that, recognizing the threshold is “clear and convincing” evidence,
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“the evidence presented was insufficient to meet the requisite burden to
classify [Appellant] as an SVP.” Concise Statement, 9/12/16, at ¶¶ 7-9. As
the trial court noted, Appellant “did not clarify whether the sufficiency
challenge related to the Paraphilia diagnosis or the predatory conduct
finding. It matters not, since both elements were supported by clear and
convincing evidence.” Trial Court Rule 1925(a) Opinion, 11/15/16, at 10.
As the court explained, a SOAB member testified as an expert for the
Commonwealth.
[The expert’s] uncontroverted expert opinion was that Appellant
suffered from Paraphilic Disorder, based on the victim being
under the age of twelve when the abuse occurred.[10] [The
expert] specifically testified that the diagnosis and the risk to
reoffend remains even after the victim ages beyond thirteen
years old. [The expert] testified that his opinion was given to a
reasonable degree of medical certainty. Appellant offered no
evidence to refute this evidence, which this [c]ourt found
credible.
Furthermore, the record reflects that Appellant established a
predatory relationship with the victim for the purpose of sexual
victimization. Of particular note is [Appellant’s] behavior at the
party where, after providing the victim alcohol, he interrupted
boys who were harassing her, thereby creating an element of
trust, and then took her into his bedroom where she was
isolated and available to him for his own sexual purposes.
Evidence also established that he reached out to her following
his return to Alaska to reestablish a relationship that was
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10
The trial court’s reference to A.R. being “under the age of twelve” appears
to be nothing more than oversight. It is undisputed in the record that she
was twelve when the first two incidents occurred in the spring of 2013 and
the expert did not suggest otherwise. Although Appellant attempts to make
an issue out of the oversight, Appellant acknowledges A.R. was twelve in the
spring of 2013. Appellant’s Brief at 37.
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flirtatious in nature. These facts support [the expert’s]
testimony and this [c]ourt’s conclusion beyond a clear and
convincing standard, and this [c]ourt did not err in determining
Appellant to be a sexually violent predator.
Id. at 10. Again, it is not this Court’s role to reweigh the evidence. Meals,
912 A.2d at 223. Just as in Meals, the SVP determination here was not
based entirely on the age of the victim; the expert’s opinion that Appellant
“was a pedophile—itself was evidence.” Id. (emphasis in original).
Further, to the extent Appellant believed the expert’s diagnosis “was not
fully explained, did not square with accepted analyses of the disorder of was
simply erroneous, he certainly was free to introduce evidence to that effect
and/or argue to the factfinder that the Commonwealth’s expert’s conclusions
should be discounted or ignored.” Id. at 223-24.11 Here, Appellant did not
do so and it is clear that the expert’s opinions were supported not only by
A.R.’s age but also by findings based on his review of statutory criteria for a
sexually violent predator as well as factors for determining existence of a
mental abnormality or personality disorder. N.T., SVP Hearing, 7/22/16, at
7-17.
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11
For instance, Appellant challenged the expert’s characterization of A.R. as
“prepubescent,” which the expert explained was defined as “generally age
13 years or younger,” according to the current Diagnostic and Statistical
Manual of Mental Disorders (“DSM-5”). While that age range is accepted in
the profession “for the purpose of psychiatric nomenclature,” and the expert
did not base her prepubescence on anything other than age, Appellant did
not offer any evidence to support a contradictory finding. Notes of
Testimony, SVP Hearing, 7/22/16, at 22-23.
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We find the trial court’s SVP determination is supported by clear and
convincing evidence. Therefore, in the event the trial court reinstates
Appellant’s judgment of sentence on remand, the trial court shall reinstate
the SVP finding as a component of Appellant’s judgment of sentence.
In his third issue, Appellant complains that the prosecutor improperly
vouched for A.R. and, in doing so, prejudiced Appellant so that the jury was
unable to render a fair and impartial verdict. Specifically, Appellant
complains that the prosecutor “offered his personal opinion that [A.R.] was
telling the truth on no fewer than five occasions during the Commonwealth’s
closing argument.” Appellant’s Brief at 29. As Appellant acknowledges,
comments made by a prosecutor in closing “cannot be viewed in isolation
but, rather, must be considered in the context in which they were made.”
Appellant’s Brief at 2 (quoting Commonwealth v. Judy, 978 A.2d 1015,
1019 (Pa. Super. 2009) (additional citation omitted)). We review the
prosecutor’s statements under a harmless error standard, which requires
this Court “to evaluate whether a defendant received a fair trial, not a
perfect trial.” Judy, 978 A.2d at 1019-20 (additional citation omitted).
In the prosecutor’s closing, he discussed A.R.’s testimony and her
motivation. He commented three times to the effect that her testimony was
the truth and then stated, “She was honest from the first word out of her
mouth on that stand.” N.T., Trial, 1/14/16, at 205-06. Appellant’s counsel
objected, claiming the prosecution was expressing an opinion about the
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testimony. The prosecutor countered that Appellant’s counsel had done the
same thing with A.R.’s testimony and that he was simply responding. Id. at
207.12 The trial court instructed the jurors that the attorneys’ personal
opinions about the credibility of any witness are “not relevant and [are] not
to be considered.” Id.
When instructing the jury, the trial court reiterated that arguments of
counsel are not evidence and should not be considered as such; that
counsel’s personal beliefs are irrelevant and immaterial; and that it is up to
each juror to decide the case based on the evidence presented and the
court’s instructions. Id. at 217-18. As the trial court suggested, “Much like
any other objection which is sustained, once the jury is instructed not to
consider a matter, it is presumed that the jury can and will follow the
[c]ourt’s instruction.” Trial Court Rule 1925(a) Opinion, 11/15/16, at 8. We
agree. Moreover, as the court recognized, no further objection was lodged
and Appellant did not seek a mistrial.
We find the trial court properly sustained the objection raised by
Appellant’s counsel and delivered an appropriate curative instruction. We
reject Appellant’s contention that the prosecutor’s remarks prejudiced
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12
See, e.g., N. T., Trial, 1/14/16, at 201, where Appellant’s counsel
remarked, “But I suggest to you that the statements that she has made, the
story that she has told, it’s just not true. It just didn’t happen.”
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Appellant or deprived him of a fair trial. Appellant’s third issue fails for lack
of merit.
In his fourth and final issue, Appellant asks us to consider whether the
trial court abused its discretion by denying Appellant’s request for a new trial
based upon after-discovered evidence without providing an explanation for
the denial or without a hearing on the motion. When we examine a trial
court’s decision to deny a new trial on the basis of after-discovered
evidence, “we ask only if the court committed an abuse of discretion or an
error of law which controlled the outcome of the case.” Commonwealth v.
Padillas, 997 A.2d 356, 361 (Pa. Super. 2010) (quoting Commonwealth v.
Bonaccurso, 625 A.2d 1197, 1199 (Pa. Super. 1993)).
In his motion for a new trial, Appellant claimed he had obtained newly
discovered and highly exculpatory evidence. Specifically, Appellant argued
that a new trial was warranted in light of, first, a possible recantation by
A.R. and, second, evidence that Appellant was recovering from hip
replacement surgery when the first two alleged incidents occurred in 2013.
Appellant’s Brief at 42. In a one-sentence order entered April 27, 2016, the
trial court denied Appellant’s motion.
As Appellant acknowledged in his motion, in order to be granted a new
trial based upon after-discovered evidence, the defendant must
demonstrate, inter alia, that the new information could not have been
discovered prior to the trial through the exercise of reasonable diligence.
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Appellant’s Motion for New Trial, 4/25/16, ¶ 23 (citing Padillas, 997 A.2d at
363 (additional citation omitted)).13
“To obtain a new trial based on after-discovered evidence, the
petitioner must explain [inter alia] why he could not have produced the
evidence in question at or before trial by the exercise of reasonable
diligence.” Padillas, 997 A.2d at 363 (citation omitted). “[A] defendant
who fails to question or investigate an obvious, available source of
information, cannot later claim evidence from that source constitutes newly
discovered evidence.” Id. at 364 (citation omitted). Further, “a defendant
has a duty to bring forth any relevant evidence in his behalf.” Id. (citation
omitted).
In his motion, Appellant suggested that he had identified a witness,
“A.B.,” who supposedly said A.R. admitted fabricating the allegations against
Appellant. However, A.B. was known to Appellant and trial counsel prior to
trial and the investigator hired by trial counsel attempted to contact A.B.
The investigator “left a business card at the home of A.B. and requested
____________________________________________
13
Padillas quoted the four-pronged test set forth in Commonwealth v.
Pagan, 950 A.2d 270, 292 (Pa. 2008), requiring a defendant to prove the
evidence could not have been obtained prior to the end of the trial by the
exercise of reasonable diligence; the evidence is not merely corroborative or
cumulative; it will not be used solely to impeach the credibility of a witness;
and it would likely result in a different verdict if a new trial were granted.
The test is conjunctive and the defendant must prove each factor by a
preponderance of the evidence in order for a new trial to be warranted. Id.
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A.B.’s mother, contact him to speak about the charges. Neither A.B. nor her
mother ever contacted [the investigator].” Motion for New Trial, 4/25/16, at
¶ 13. After trial, a new investigator hired by Appellant’s post-trial counsel
spoke with another witness, C.M., who told the investigator that she had
spoken with A.B. and that A.B. said the victim, A.R., fabricated the
allegations against Appellant. The investigator then attempted to speak with
A.B. but was denied the opportunity by A.B.’s mother. A.B.’s mother did tell
the investigator that A.B. had “nothing to offer to either side of the case,
and stated that this is why ‘the police’ didn’t need [A.B.] in the case.”
Motion for New Trial, 4/25/16, Exhibit C.
Although the trial court did not offer an explanation for denying
Appellant’s request for a new trial in its order or in its Rule 1925(a) opinion,
the lack of an opinion does not pose a substantial impediment to our review.
With regard to A.B., Appellant has not demonstrated reasonable diligence in
attempting to obtain evidence from A.B. prior to trial. Simply leaving a
business card with a “please contact me” request suggests minimal effort in
obtaining evidence. More importantly, based on the information obtained by
the new investigator, there is no suggestion that A.B. would offer evidence
of A.R.’s alleged recantation. To the contrary, A.B.’s mother stated that A.B.
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had nothing to offer either side of the case. Appellant has not satisfied
either the first or the fourth prongs of the test outlined in Pagan.14 15
Appellant also claimed that the original investigator obtained medical
records prior to trial reflecting that Appellant underwent hip replacement
surgery on January 28, 2013. However, the investigator did not contact the
surgeon to discuss Appellant’s surgery or any limitations Appellant may have
experienced postoperatively. Again, the later of first two incidents involving
A.R. occurred on or about March 17, 2013 and the earlier of those incidents
occurred a few weeks earlier. Appellant contends the testimony of his
surgeon, who has now expressed a willingness to participate in future
proceedings, could potentially support a “physical impossibility” defense.
Motion for New Trial, 4/25/16, at ¶¶ 22, 24-26.
While it is clear that the surgeon did not offer testimony at trial, it is
unclear why Appellant did not even mention the surgery. Surely, he was
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14
To the extent Appellant contends he was entitled to a hearing, we
disagree. Pa.R.Crim.P. 720(C) (After-Discovered Evidence) provides: “A
post-sentence motion for a new trial on the ground of after-discovered
evidence must be filed in writing promptly after such discovery.” The rule
does not mandate a hearing. As our Supreme Court recognized in
Commonwealth v. Castro, 93 A.3d 818, 827 (Pa. 2014), “Simply relying
on conclusory accusations made by another, without more, is insufficient to
warrant a hearing.” The same rationale applies here where Appellant sought
a new trial based on undeveloped allegations of what an individual might
say.
15
If a new trial is ordered, the Appellant would be free to offer this "newly-
discovered” evidence at trial, so long as the trial court determines it to be
relevant and admissible.
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aware of the procedure and the timeline surrounding A.R.’s 2013 allegations.
He certainly was competent to describe the surgery, his recovery, and any
limitations resulting from the surgery. Expert testimony was not required in
order to put the fact of the surgery or Appellant’s postoperative experiences
before the jury. Therefore, Appellant cannot claim entitlement to a new trial
based on newly discovered evidence when neither the fact of the surgery nor
Appellant’s postoperative recovery constituted new information. Appellant’s
fourth issue fails.16
Judgment of sentence vacated. Case remanded for further
proceedings in accordance with this Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
____________________________________________
16
To the extent Appellant asks us to consider allegations of ineffectiveness
of trial counsel at this juncture, we decline to do so without prejudice to
Appellant to raise them in proceedings pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-9546, if appropriate. See Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002) (“as a general rule, a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral
review.”).
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