Com. v. Capodieci, A.

J-A21009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

ANTHONY CAPODIECI,

Appellant No. 1217 WDA 2015

Appeal from the Judgment of Sentence Entered July 8, 2015
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000350-2014

BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 20, 2017

Appellant, Anthony Capodieci, appeals from the judgment of sentence

of an aggregate term of 26-52 years’ incarceration, imposed following his

conviction for rape of a child and related offenses. After careful review, we

affirm.

The trial court summarized the facts adduced at trial as follows:

During trial, the jury heard evidence that on multiple
occasions, [Appellant] performed sexual acts upon, and had
sexual acts performed upon him by M.B., a minor child, whose
date of birth is January [of] 1999 (hereinafter "Victim").
Specifically, Victim testified that he first met [Appellant] in 2009,
while working for the Traveling Barnyard Petting Zoo. Soon
thereafter, in 2009, [Appellant] began spending time with Victim
away from the petting zoo - shopping, eating meals together, and
spending time together at [Appellant]'s home. [Appellant] then
began to engage in sexual activities with Victim, then 10 years of
age, including kissing, fondling, and [Appellant’s] having Victim
manually stimulate his penis. During some of these visits,
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[Appellant] supplied Victim with condoms and forced Victim to
perform anal sex on him. On one occasion, when Victim was 12
years of age, [Appellant] forced Victim to watch a pornographic
film with him, during which [Appellant] performed oral sex on
Victim. On another occasion, [Appellant] purchased an inflatable
sex doll and forced Victim to perform sexual acts on the doll by
penetrating the doll's orifices while [Appellant] watched. Victim
also testified that [Appellant] would force Victim to perform oral
sex on him in [Appellant]'s bedroom.

Trooper Joseph Timms and Corporal David Leonard of the
Pennsylvania State Police testified that on January 17, 2014, they
interviewed [Appellant] at the State Police Barracks in Belle
Vernon, Pennsylvania, during which [Appellant] was confronted
with the allegations made against him.

[Appellant] was not under arrest at that time, but met with
the police voluntarily. After being informed of his Fifth and Sixth
Amendment Rights, [Appellant] signed a waiver, agreed to speak
with the troopers, and submitted to a polygraph examination.
[Appellant] first denied the allegations, but later in the interview,
[Appellant] told the police that he had performed oral sex on
Victim multiple times, that Victim had performed oral sex on him
multiple times, and that Victim had performed anal sex on him
multiple times, [Appellant] then provided a written statement to
the police, apologizing for having an "inappropriate relationship"
with Victim, and admitting that he had performed oral sex on
Victim six (6) times, that Victim had performed oral sex on him
six (6) times, and that Victim had penetrated him anally three (3)
times.

Trial Court Opinion (TCO), 10/3/16, at 5-6.

The Commonwealth ultimately charged Appellant with rape of a child, 1

rape by forcible compulsion,2 statutory sexual assault,3 involuntary deviate

____________________________________________

1 18 Pa.C.S. § 3121(c).

2 18 Pa.C.S. § 3121(a)(1).

3 18 Pa.C.S. § 3122.1(b).

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sexual intercourse,4 involuntary deviate sexual intercourse with a child,5

corruption of minors,6 indecent assault of a person less than 13 years of age,7

and indecent assault of a person less than 16 years of age. 8 Appellant was

tried by a jury on April 8-9, 2015. The jury returned a guilty verdict on all

counts on April 9, 2015. On July 8, 2015, the trial court sentenced Appellant

to an aggregate term of 26-52 years’ incarceration.9 Appellant filed a timely

notice of appeal on August 6, 2015, and a timely, court-ordered Pa.R.A.P.

1925(b) statement on February 1, 2016. The trial court issued its Rule

1925(a) opinion on October 3, 2016.

Appellant now presents the following issues for our review:

1. The [trial c]ourt erred in denying [Appellant]'s motion for
judgment of acquittal on counts 1, 5 and 7, which required
proof that the victim was under 13 years of age at the time
of the offenses.

2. The [trial c]ourt declined to grant an adequate remedy for
the Commonwealth's violation of [Pa.R.Crim.P.] 573 and the
Brady[10] rule applying to mandatory disclosure of evidence.

____________________________________________

4 18 Pa.C.S. § 3123(a)(7).

5 18 Pa.C.S. § 3123(b).

6 18 Pa.C.S. § 6301(a)(1)(ii).

7 18 Pa.C.S. § 3126(a)(7).

8 18 Pa.C.S. § 3126(a)(8).

9 A specific breakdown of the individual sentences imposed is not germane to
the issues raised in this appeal.

10 Brady v. Maryland, 373 U.S. 83 (1963).

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3. The [trial c]ourt erred in allowing the Commonwealth to
introduce a photo of [V]ictim, as it was more prejudicial than
probative.

4. The [trial c]ourt erred in allowing the Commonwealth to
question [Appellant] about suspicious activities with
children other than the victim.

Appellant’s Brief at 7.

Appellant’s first claim is a challenge to the sufficiency of the evidence.

See Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006)

(“A motion for judgment of acquittal challenges the sufficiency of the evidence

to sustain a conviction on a particular charge, and is granted only in cases in

which the Commonwealth has failed to carry its burden regarding that

charge.”). Our standard of review of sufficiency claims is well-settled:

A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention to
human experience and the laws of nature, then the evidence is
insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

Appellant asserts that:

[Victim] was born [in] January of 1999. He turned thirteen [in]
January [of] 2012. At one point, [he] testified that he stopped
spending time with [Appellant] sometime in 2012. Later [during
his] testimony, he says that the last time he "hung out" with
[Appellant] was in the beginning of 2013. That would mean that

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[Victim] was thirteen for a whole year while he and [Appellant]
were still spending time together. [Victim]'s mother corroborated
that [Victim] saw [Appellant] a few times after her father's funeral
in the summer of 2012. Nothing in the evidence narrows the time
of the alleged sexual interactions more than testimony that they
occurred between 2009 and 2013. All of the incidents may have
occurred after January 20, 2012, after [Victim] turned thirteen
years old. There is nothing to prove beyond a reasonable doubt
that the incidents occurred before January [of] 2012.

Appellant’s Brief at 13 (citations omitted).

The trial court states that,

at trial, the court and the jury heard evidence through testimony
from Victim, claiming that on multiple occasions from 2009 to
2012, [Appellant], then approximately seventy (70) years of age,
engaged in sexual activities with Victim, who was between ten
(10) and thirteen (13) years old at the time. These activities
included [Appellant’s] performing oral sex on Victim, [Appellant’s]
forcing Victim to perform oral sex on him, [Appellant’s] forcing
Victim to penetrate him anally, [Appellant’s] forcing Victim to
pleasure him manually, [Appellant’s] forcing Victim to watch a
pornographic film with him, and [Appellant’s] purchasing a blow-
up sex doll and forcing Victim to engage in sexual acts with the
doll while [Appellant] watched.

TCO at 8-9.

Furthermore, the Commonwealth argues:

Contrary to the [Appellant]'s claims, a review of the trial
transcript shows that the Commonwealth offered extensive
evidence that [Victim] was less than 13 years old at the time he
was raped and assaulted. [Victim] testified that he was born [in]
January [of] 1999. Notes of Trial Testimony, April 8 - April 9,
2015, at 32, 261. [Victim] testified that he met [Appellant] while
working in the Barnyard Petting Zoo, where he began working
around ages 9 through 10. Id., at 36. [Victim] testified that when
he was 10 years old he broke his arm, and began spending more
time with [Appellant] at [Appellant]'s "house and restaurants."
Id., at 38. [Victim] testified that he was 10 years old the first
time that [Appellant] sexually assaulted him. Id., at 39 - 40.
[Victim] testified that [Appellant] sexually assaulted him - "Making
people give blow jobs and touching private parts and anal

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penetration, kissing, stuff like that," as [Victim] put it - when he
was ages 10 through 13, on more than one occasion. Id., at 34-
35. [Victim] testified that he was 12 years old when [Appellant]
had oral sex with him. Id., at 44. [Victim] testified that, when
[he] was 14 years old, [Victim] told his girlfriend that [Appellant]
had molested him "a couple years ago, when I was younger." Id.,
at 63-64.

Commonwealth’s Brief at 13-14. Moreover, Victim’s mother testified that

Victim visited Appellant’s home “mostly from 2009 through 2011[,]” when

Victim was “10, 11, and 12 years old at that point.” N.T., 4/9/15, at 246.

After careful review of the record, it must be conceded that precise dates

were not provided for Appellant’s repeated molestation of Victim. However,

despite that ambiguity, the bulk of evidence presented tended to establish

that Victim was less than 13 years of age at the time of those assaults.

Accordingly, whether the precise acts which formed the factual basis for the

age-dependent charges at issue were committed before or after Victim was

13, goes to the weight, not the sufficiency of the trial evidence. As such,

whatever ambiguity arose concerning Victim’s age pertained to factual

matters properly left to the fact-finder to resolve, and did not present a legal

bar under our sufficiency standard. Simply put, given the nature of the

evidence presented, as detailed above, the jury could have reasonably

concluded that Victim was under 13 at the time Appellant committed all of the

specific acts, given that we must give the “prosecution the benefit of all

reasonable inferences to be drawn from the evidence.” Widmer, supra. We

conclude, therefore, that Appellant’s first claim lacks merit.

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Appellant next complains that the trial court provided an inadequate

remedy for the Commonwealth’s Brady/discovery violation. The trial court

explains:

In this case, [Appellant] received discovery materials from the
Commonwealth which included a written summary of a taped
forensic interview with Victim. [Appellant] did not, however,
receive a copy of that taped interview. The Commonwealth
asserted that it was the policy of the child advocacy center which
conducted the interview not to release copies of recorded
interviews, except to the police or the District Attorney's office on
the condition that the recording was not to be duplicated.
[Appellant] received the discovery materials, including the written
summary of Victim's forensic interview, but made no inquiry into
the whereabouts of the recording, and made no request to view
the recording.

Id. at 11.

On March 16, 2015, the date originally scheduled for trial, Appellant’s

trial counsel noticed that the Commonwealth was “setting up an audio-visual

display.” Appellant’s Brief at 9. When counsel inquired about the reason why

the display was necessary, the prosecutor indicated that “it was for the video

of the [f]orensic [i]nterview.” Id. Subsequently,

[u]pon [Appellant]'s motion, the trial court granted a continuance
to allow [Appellant] to view the recording, then held a hearing on
the matter wherein it found that no deliberate withholding
occurred, as [Appellant] was put on notice of the existence of the
recording but took no further action to attempt to view it. Using
[Commonwealth v.] Burke[, 781 A.2d 1136 (Pa. 2001),] for
guidance, the trial court examined and found that there was very
little, if any, prejudice to [Appellant] arising from the violation,
and thus held that the continuances already granted were an
appropriate and sufficient remedy.

TCO at 11-12.

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In Brady, the United States Supreme Court held that “the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment irrespective of the good
faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct.
1194. The Supreme Court subsequently held that the duty to
disclose such evidence is applicable even if there has been no
request by the accused, United States v. Agurs, 427 U.S. 97,
107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976), and that the
duty encompasses impeachment evidence as well as directly
exculpatory evidence, United States v. Bagley, 473 U.S. 667,
676, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985). On the
question of materiality, the Court has noted that “[s]uch evidence
is material ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Strickler v. Greene,
527 U.S. 263, 281, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999)
(quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375). The
materiality inquiry is not just a matter of determining whether,
after discounting the inculpatory evidence in light of the
undisclosed evidence, the remaining evidence is sufficient to
support the jury's conclusions. “Rather, the question is whether
‘the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the
verdict.’” Id. at 290, 119 S.Ct. 1936 (quoting Kyles, 514 U.S. at
435, 115 S.Ct. 1555). Thus, there are three necessary
components that demonstrate a violation of the Brady strictures:
the evidence was favorable to the accused, either because it is
exculpatory or because it impeaches; the evidence was
suppressed by the prosecution, either willfully or inadvertently;
and prejudice ensued. Id. at 281, 119 S.Ct. 1936.

[Pa.R.Crim.P. 573][11] was promulgated in response to the
dictates of Brady. See Commonwealth v. Green, 536 Pa. 599,
607, 640 A.2d 1242, 1246 (1994). The rule provides, in pertinent
part, as follows:

(B) Disclosure by the Commonwealth

(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
____________________________________________

11In Burke, the Supreme Court discussed prior Rule 305, which was later
renumbered Rule 573, effective April 1, 2001. See Pa.R.Crim.P. 573 (note).

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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 instant case. The Commonwealth
shall, when applicable, permit the defendant's attorney to
inspect and copy or photograph such items.

(a) Any evidence favorable to the accused which is
material either to guilt or to punishment, and which is
within the possession or control of the attorney for the
Commonwealth.

Pa.R.Crim.P. [573](B)(1)(a). In the event of a violation of Rule
[573], the trial court “may order [the offending] party to permit
discovery or inspection, may grant a continuance, or may prohibit
[the offending] party from introducing evidence not disclosed,
other than testimony of the defendant, or it may enter such other
order as it deems just under the circumstances.” Pa.R.Crim.P.
[]573(E).

Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001).

Instantly, Appellant argues that the remedy provided by the trial court,

a continuance, was inadequate to remedy the Brady/discovery violation, for

the following reasons:

Failure by the Commonwealth to properly disclose exculpatory
evidence seriously prejudiced the defense. Two motions were
litigated before the court, and rulings were made in favor of the
Commonwealth, all without the benefit of the exculpatory (and,
for that matter, inculpatory) evidence on the DVD. In particular,
the motion for Habeas Corpus relief was denied, because there
appeared to be a sufficient question as to whether the alleged
events occurred before the alleged victim turned 13 years. The
DVD provides multiple statements material to that ruling, and may
have changed the outcome of that motion. Speculation in
hindsight as to how the court might have ruled and how the
defense might have presented its evidence is impossible.

Because of the extreme delay before this evidence was
unearthed, the text messages and associated metadata which
precipitated the alleged victim's accusations were spoliated by the
Commonwealth. The text messages were in possession of the

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alleged victim, and offered to investigators on the DVD, but
disappeared before trial. Although the government has no duty
"to act as a private investigator and valet for the defendant,
gathering evidence and delivering it to opposing counsel," the
delay in performing its statutorily and constitutionally mandated
Brady disclosures has impeded the Defense's ability to obtain this
evidence. U.S. v. Tadras, 310 F.3d 999, 1005 (7th Cir. 2002).
The remedy that the Court provided was to continue the jury trial.
That was not a sufficient remedy, under the circumstances. All
charges should be dismissed with prejudice.

Appellant’s Brief at 18.

The trial court, relying on Burke, rejected Appellant’s claim that the

Brady/discovery violation remedy was inadequate, stating:

As in Burke, dismissal in this case would have been an overly
harsh and inappropriate remedy, as would have been exclusion of
Victim's testimony, since that restriction would have had
essentially the same effect as dismissal. Because [Appellant]
requested no other specific remedy, the trial court chose the only
appropriate remedy available, and thus, did not err in granting a
continuance as a remedy to the violation.

TCO at 12.

We are not convinced by Appellant’s arguments that the trial court’s

remedy was insufficient. Pursuant to Rule 573(E), the exclusion of evidence

and/or the dismissal of criminal charges are extreme remedies, not even

explicitly mentioned in the Rule, although ostensibly possible under the rubric

of the “such other order as [the trial court] deems just under the

circumstances” language of that provision. Pa.R.Crim.P. 573(E). Accordingly,

such extreme remedies should be reserved for the most egregious violation of

Rule 573. We reject Appellant’s contention that the Commonwealth’s violation

here rose to that level.

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In Commonwealth v. Gordon, 528 A.2d 631 (Pa. Super. 1987), the

defense learned, during trial, that a police officer had prepared a report which

had not been disclosed by the Commonwealth during pre-trial discovery.

“Upon learning of the report and after reviewing its contents, defense counsel

moved for dismissal of the charges. The court denied the motion.” Gordon,

528 A.2d at 633. Despite the existence of some potentially favorable evidence

for the defendant in the report, on appeal we agreed with the trial court that

dismissal of charges or the granting of a new trial was not justified on the

basis of the Brady/discovery violation because “anything in the report

favorable to the defendant was before the learned finder of fact[,]” as “the

undisclosed police report came to light at trial” and was admitted into

evidence. Id. at 635.

In Commonwealth v. Crossley, 653 A.2d 1288 (Pa. Super. 1995), the

Commonwealth appealed from the trial court’s order dismissing charges

against the defendant based on the Commonwealth’s failure to disclose a

witness’s statement until the day before trial, even though the Commonwealth

did not oppose a defense continuance to review that evidence. We reversed,

holding that “[t]he failure of the prosecution to comply fully with the discovery

order was not demonstrated by the appellee to prejudice his right to a fair

trial.” Id. at 1291. Applying a proportionality standard, we stated that

the dismissal of the prosecution was not a remedy consistent with
the wrong committed by the Commonwealth. It is conceivable, of
course, that a violation may be so egregious as to recommend an
order dismissing all charges. Such an order, however, was not
warranted under the circumstances present in this case. A

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continuance, if necessary and requested, would have been more
appropriate.

Id. at 1292.

Instantly, Appellant was provided with a written summary of the Victim's

forensic interview during discovery. Accordingly, Appellant was on notice that

the interview occurred, and that it was recorded, but he took no action to

specifically inquire as to whether any audio of visual recording of that interview

still existed. We do agree with the trial court that the Commonwealth violated

Rule 573 by failing to turn over a copy of the video, despite not having

received a discovery request specific to that evidence. However, the video

was ultimately disclosed to the defense and, therefore, any evidence derived

therefrom, whether it be material or impeachment evidence, was ostensibly

available to be put before the factfinder. Moreover, the remedy provided by

the trial court in this case appears to be proportionate to the violation which

occurred. Appellant’s trial, which was originally scheduled for March 16, 2015,

was postponed until April 8, 2015, affording the defense 23 days to review

the one-hour-long interview.

Nevertheless, Appellant posits two arguments why he was still unduly

prejudiced by the Commonwealth’s delayed disclosure of the Victim’s forensic

interview, despite the 23-day continuance granted by the trial court. First,

Appellant contends that two motions were litigated before the disclosure, both

of which resulted in favorable rulings for the Commonwealth. However,

Appellant only briefly discusses one of those motions in his brief, a habeas

corpus motion focused on the sufficiency of the evidence as it pertained to

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Victim’s age at the time of the relevant sexual assaults. Appellant’s Brief at

18. As discussed above, we have already determined that there was sufficient

evidence to establish Victim’s age based on the evidence produced at trial.

Since Appellant was in possession of the previously-undisclosed video of the

forensic interview, any exculpatory evidence or evidence bearing on Victim’s

credibility from that video regarding the age issue was for the jury to hear.

As such, we find no basis upon which to conclude that the late disclosure of

that evidence significantly affected the fairness of Appellant’s trial with respect

to the age issue. This aspect of Appellant’s claim is meritless.

Second, Appellant argues that “text messages and associated metadata

which allegedly precipitated the [Victim’s] accusations were spoliated by the

Commonwealth.” Id. The text messages at issue “were in [the] possession

of [Victim], and offered to investigators in the [video], but disappeared before

trial.” Id. However, Appellant does not claim that this lost evidence was

exculpatory. At best, it was potentially helpful for the defense for the purposes

of challenging Victim’s credibility. In this regard, Appellant cites to the

transcript of the forensic interview to claim that the texts may have indicated

a motive for Victim to falsely accuse Appellant,12 but that transcript has not

been made part of the certified record in this appeal. “Our law is unequivocal

____________________________________________

12 Essentially, Appellant asserts that Victim reportedly received a text message
from Appellant asking why Victim’s parents no longer liked Appellant, which
was viewed suspiciously by Victim’s girlfriend. From this Appellant speculates
that Victim made up the charges against him in order to assuage his
girlfriend’s jealously.

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that the responsibility rests upon the appellant to ensure that the record

certified on appeal is complete in the sense that it contains all of the materials

necessary for the reviewing court to perform its duty.” Commonwealth v.

Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006). Because the record

actually before us does not support this aspect of Appellant’s claim, we find it

to be purely speculative and, therefore, meritless.

Accordingly, we conclude that the trial court did not err or otherwise

abuse its discretion when it declined to dismiss the charges against Appellant

based on the Commonwealth’s failure to promptly disclose the video of

Victim’s forensic interview. Indeed, we agree with the trial court that the

continuance granted to Appellant was an adequate and proportionate remedy

for the Commonwealth’s Brady/discovery violation.

Next, Appellant claims the trial court abused its discretion when it

allowed the Commonwealth to introduce a photo of the victim. Appellant

asserts that the prejudicial effect of the photo outweighed its probative value.

The photo in question depicted Victim at that the time his arm was broken,

which coincided with the time when Appellant first started spending time with

him. Appellant contends that

[t]he sweet-looking picture of [Victim] as a child was used to
evoke the emotions of the jury. Since the picture was irrelevant
to setting up a timeline, what would be the difference between
this picture and a whole album of cute baby pictures[?] The photo
is inflammatory in this context because it inflames the sympathies
of the jury toward [Victim] and inflames their hatred towards
[Appellant].

Appellant’s Brief at 20.

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With regard to the admission of evidence:

We give the trial court broad discretion, and we will only
reverse a trial court's decision to admit or deny evidence on
a showing that the trial court clearly abused its discretion.
An abuse of discretion is not merely an error in judgment,
but an overriding misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the result
of bias, prejudice, ill-will or partiality, as shown by the
evidence or the record.

Commonwealth v. Sauers, 159 A.3d 1, 6 (Pa. Super. 2017) (citation

omitted). With regard to the admission of photographic evidence, we have

held that “[t]he determinative inquiry is whether the photos have evidentiary

value that outweighs the possibility of inflaming the minds and passions of the

jurors.” Commonwealth v. Jacobs, 639 A.2d 786, 788 (Pa. 1994).

The trial court justified the admission of the photo at issue as follows:

Here, the Commonwealth presented a photograph of Victim
as evidence and published that photograph to the jury. That
photograph depicted Victim with his arm in a cast at age ten (10)
or eleven (11). Victim stated that the photograph was taken near
to the time period in which he began to increase the amount of
time he spent in [Appellant]'s home. As stated above, to
determine admissibility of evidence of this nature, the court must
first determine whether the photograph is relevant to the instant
case. The photograph is certainly relevant to the case, as it helps
to establish the time frame in which these encounters occurred,
and Victim's age at the time. Victim's age at the time of the sexual
assault was a matter of contention, as set forth above. The
relevance of the photograph thus established, the court must then
determine whether the photograph is "inflammatory by its very
nature." This was not a photograph of a crime scene or an
autopsy, or a similar visual image which has the ability to stir
intense passions in a jury. This was a photograph of Victim, with
his arm visibly broken and casted, taken near the time the
incidents began, and offered to establish that timeframe.
Therefore, since the trial court found that the photograph was
relevant and not inflammatory by nature, the court did not abuse
its discretion by allowing its introduction as evidence at trial.

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TCO at 13-14.

We agree with the trial court. The photo’s probative value may not have

been substantial, but it was certainly relevant. Appellant’s age at the time of

the assaults was very much in contention at trial, and the photo tended to

corroborate Victim’s recollection of his age when he began spending time with

Appellant, which was at the same time that he had broken his arm. N.T.,

4/8/15, at 37. Moreover, the prejudicial effect of the photo must have been

minimal. A photo of a child, even one in a cast, is not, by its nature,

inflammatory. There was little to no risk of inflaming the passions of the jury

from such a photo. Accordingly, we hold that the trial court did not abuse its

discretion by admitting that evidence.

Finally, Appellant argues that the trial court abused its discretion by

permitting the Commonwealth to question Appellant about “suspicious”

activities with other children. Appellant’s Brief at 7, 20. Appellant explains

his final claim as follows:

In his testimony, [Appellant] said that he would sometimes lock
pinkie fingers with [Victim] when they were in a car or at a
restaurant. He stated that he learned this practice from his
grandchildren. The Commonwealth attorney asked [Appellant] if
he ever locked pinkies with children other than his grandchildren
and [Victim]. Defense Counsel objected to this line of questioning
as being irrelevant and more prejudicial than probative.

Appellant’s Brief at 20.

After the court overruled Appellant’s objection, the full extent of the

questioning that occurred was as follows:

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Q. I was asking you, you said you did this interlock thing. Did
you do it with other children as well?

A. I may have.

Q. Was that common practice for you?

A. No.

N.T., 8/9/15, at 303.

The trial court determined that this questioning was probative of

relevant evidence, and not unduly prejudicial:

Victim had already testified that [Appellant] told him that
interlocking fingers was normal behavior, and [Appellant] had, on
direct examination prior to the questioning at issue, offered
instances wherein he would interlock his pinky finger with Victim[]
when they were together, claiming he had learned this behavior
from his grandchildren. The prosecution then expounded on that
statement by asking [Appellant] if he had interlocked fingers with
other children, and by asking if that was a common thing for him
to do in general. Nothing further was asked in this line of
questioning. These were relevant questions asked by the
prosecution to determine, after hearing [Appellant]'s explanation
of the behavior, whether this behavior was common for
[Appellant], or if it related to the specific attentions he had given
to Victim.

This questioning, while potentially adverse to [Appellant]'s
case, did not rise to the level of "unfair prejudice" as it has been
defined in this Commonwealth. As such, the trial court finds that
it did not abuse its discretion in allowing Defendant to be
questioned in this manner.

TCO at 15-16 (footnotes omitted).

We agree with the trial court. The Commonwealth’s question was

relevant because it directly addressed Appellant’s admitted physical contact

with the victim, and sought only to determine whether that behavior was

specific to Victim or something he did with other children. There was a single

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follow up question, regarding whether this behavior was “common practice”

for Appellant, to which he answered, “[n]o.” Id. The inquiry into this area

was brief, it directly flowed out of Appellant’s own testimony on direct

examination, and it was unlikely to have a significant impact on the jury in

light of the other evidence introduced at trial, especially Appellant’s

confession. Accordingly, we agree with the trial court that any resulting

prejudice was minimal and could not have outweighed the probative value of

the brief line of questions. Accordingly, we conclude that the trial court did

not abuse its discretion by permitting those questions. Thus, Appellant’s final

issue is also meritless.

Judgement of sentenced affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/20/2017

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