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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM DARROCH :
:
Appellant : No. 234 EDA 2017
Appeal from the Judgment of Sentence December 14, 2016
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0000816-2016
BEFORE: LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 21, 2017
Adam Wayne Darroch appeals from his judgment of sentence, entered
in the Court of Common Pleas of Bucks County, following his convictions for
aggravated indecent assault1 and indecent assault.2 After careful review, we
affirm.
Darroch resided in a home with several housemates, including the
victim, C.K., C.K.’s daughter, and C.K.’s boyfriend. On August 16, 2015,
Darroch and several other residents were drinking heavily when they decided
to watch a movie in the shared living room of the house. C.K., not a
participant in the drinking, fell asleep on a couch in the living room. Sometime
later, C.K. awoke with Darroch on top of her with one hand up the leg of her
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1 18 Pa.C.S. § 3125.
218 Pa.C.S. § 3126.
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* Retired Senior Judge assigned to the Superior Court.
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pants and the other hand attempting to remove her bra. Darroch’s fingers
were penetrating C.K.’s vagina. C.K. cursed at Darroch and kicked at him
until he desisted. C.K. then left the room.
Two days later, C.K. reported the incident to her boyfriend, her
housemates, and the police. The police investigated and ultimately charged
Darroch with aggravated indecent assault and indecent assault. In addition
to the assault on C.K., C.K. also alleged that Darroch had acted inappropriately
toward C.K.’s minor daughter. Accordingly, the responding police officers
independently investigated allegations that Darroch had victimized both C.K.
and her daughter. Darroch was not charged with any offenses relating to
C.K.’s daughter due to a lack of evidence, but he was charged with the above-
listed sexual offenses against C.K.
The parties agreed before trial that the Commonwealth would not
introduce any evidence involving Darroch’s alleged misconduct toward C.K.’s
daughter. However, the Commonwealth presented the testimony of Officer
Mancuso, who responded to C.K.’s initial 911 call to investigate the allegations
involving C.K.’s daughter, not the acts against C.K. herself. In order to limit
the risk of prejudice, the Commonwealth instructed Officer Mancuso to discuss
only matters involving C.K. directly, and to avoid any testimony involving
C.K.’s daughter.
While on the stand, the Commonwealth asked Officer Mancuso why he
had been called to the address. Officer Mancuso attempted to comply with
the prosecutor’s instructions by avoiding mention of C.K.’s daughter. As such,
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he replied that he was investigating a sexual assault, but did not specify
further. The prosecutor followed up by asking whether C.K. was the alleged
victim. Officer Mancuso truthfully replied that she was not. At this point, the
defense attorney objected, reminding the court that there was a high risk of
disclosing incurably prejudicial testimony involving C.K.’s daughter. The judge
ordered a sidebar and cautioned the prosecutor to steer the testimony away
from C.K.’s daughter.
Officer Mancuso was not privy to this sidebar, so he only heard the
court’s instruction after the sidebar, stating, “Go back to when [Officer
Mancuso] was called to the scene and let’s clear that up because I think it’s a
little confusing for all of us.” N.T. Trial, 6/9/16, at 145. The prosecutor then
asked Officer Mancuso for the second time why he responded to Darroch’s
residence. Officer Mancuso—believing that the court was asking him to fully
clarify the situation—testified truthfully that he had been called to investigate
the alleged sexual assault of C.K.’s eight-year-old child. The defense
immediately moved for a mistrial, which the court granted.
Prior to the second trial, Darroch moved to dismiss the charges on the
grounds of double jeopardy. The trial court granted an evidentiary hearing,
but denied Darroch’s motion. Darroch then moved to stay the proceedings to
pursue an interlocutory appeal on the issue of double jeopardy. The trial court
denied this motion and proceeded with the retrial, which resulted in the jury
finding Darroch guilty of aggravated indecent assault and indecent assault.
Darroch now appeals.
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Darroch raises three issues for our consideration. First, he argues that
the Double Jeopardy Clauses of the United States and the Pennsylvania
Constitutions should have barred his retrial. Second, he argues that the trial
court erred when it refused to stay the proceedings so that Darroch could file
an interlocutory appeal on the issue of double jeopardy. Third, and finally,
Darroch argues that the evidence was insufficient to sustain his convictions.
We address each argument in turn.
The Double Jeopardy Clauses of the United States and the Pennsylvania
Constitutions serve to protect a criminal defendant from repeated prosecution
for the same offense. Commonwealth v. Graham, 109 A.3d 733, 736 (Pa.
Super. 2015). Retrial is typically permissible where a defendant successfully
moves for mistrial, and “most forms of undue prejudice caused by inadvertent
prosecutorial error or misconduct can be remedied in individual cases by
retrial.” Commonwealth v. Kearns, 70 A.3d 881, 885 (Pa. Super. 2013).
However, retrial may be barred by double jeopardy when the prosecutor’s
conduct is intended to provoke a defendant to move for a mistrial, or when
“the conduct of the prosecutor is intentionally undertaken to prejudice the
defendant to the point of the denial of a fair trial.” Commonwealth v. Smith,
615 A.2d 321, 325 (Pa. 1992). In either case, “it is the intentionality behind
the Commonwealth's subversion of the court process, not the prejudice
caused to the defendant, that is inadequately remedied by appellate review
or retrial.” Kearns, 70 A.3d at 884–85 (emphasis in original).
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When reviewing a trial court’s double jeopardy determination, our scope
of review is plenary and our standard is de novo on questions of law.
Commonwealth v. Anderson, 38 A.3d 828, 834 (Pa. Super. 2011). We give
deference to the trial court on questions of fact and determinations of
credibility.
Where issues of credibility and weight of the evidence are
concerned, it is not the function of the appellate court to substitute
its judgment based on a cold record for that of the trial court. The
weight to be accorded conflicting evidence is exclusively for the
fact finder, whose findings will not be disturbed on appeal if they
are supported by the record.
Id. (quoting Commonwealth v. Wood, 803 A.2d 217, 220 (Pa. Super.
2002)).
Thus, we must determine whether the Commonwealth acted
intentionally to provoke a mistrial or to prejudice the defendant, or whether
the prejudicial testimony arose through inadvertence or simple error. The trial
court “firmly believe[d]” that the prosecutor and the witness made a good
faith effort to comply with the court’s orders. N.T. Double Jeopardy Hearing,
6/13/16, at 13, 15-17, 55-58. After review, we agree.
Officer Mancuso’s harmful testimony arose from the confluence of
several errors, but none of them is attributable to intentional prosecutorial
misconduct. First, Officer Mancuso was not a party to the sidebar; thus, he
was not instructed with regard to the scope of acceptable testimony. Id. at
57. Consequently, Officer Mancuso misunderstood the court’s instruction that
he was to “clarify” his testimony. Id. at 31, 44-46. As a result, Officer
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Mancuso felt that he had to give “more clarity” and “the truth of why [he] was
there, and [he] testified that it was for the sexual assault of an eight-year-old
child.” Id. at 46. Further, the prosecutor admittedly failed to artfully lead
Officer Mancuso away from the inadmissible testimony. At sidebar, the court
instructed the prosecutor to “go back and start over.” N.T. Trial, 6/9/16, at
144. Complying literally with the trial court’s instructions, the prosecutor
“started over” by repeating the same question that began the disputed
testimony. Id. at 141, 145. The prosecutor’s query may not have comported
with the constrained leading questions envisaged by the trial court, but the
question, as it was asked, does not prove the prosecutor’s intentional attempt
to subvert the trial. As Officer Mancuso aptly stated, “it was a perfect storm”
of confusion among Officer Mancuso, the judge, and the prosecutor. Id. at
44.
This was not a case of intentional prosecutorial misconduct, nor was it
a case where the prosecutor’s inappropriate action resulted in the denial of
justice. Instead, the error arose from a confluence of missteps made by the
trial court, the prosecution, and Officer Mancuso. None of these parties acted
with any clear intent to subvert justice, and the court swiftly remedied the
error by immediately ordering a mistrial. We ultimately agree with the trial
court’s assessment that the prosecutor did not act with intent to force a
mistrial or to prejudice Darroch. As such, Darroch’s first claim warrants no
relief.
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Darroch next argues that the court should have stayed the proceedings
so that Darroch could file an interlocutory appeal on the issue of double
jeopardy. A defendant generally has the right to appeal a trial court’s pre-
trial double jeopardy determination. Commonwealth v. Bolden, 373 A.2d
90 (Pa. 1977). However, no interlocutory appeal is permitted where the trial
court makes an express finding that the double jeopardy motion was frivolous.
Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011).
When considering a motion to dismiss on the basis of double jeopardy,
the trial court must make findings of fact and law on the record, along with
an order granting or denying the motion. See Pa.R.Crim.P. 587(B)(3). Next,
the court must state on the record whether the motion is frivolous. See
Pa.R.Crim.P. 587(B)(4). If the motion is frivolous, the trial court must advise
the defendant of his further appellate rights under Pa.R.A.P. 1573. See
Pa.R.Crim.P. 587(B)(5). Here, the trial court complied with the procedural
requirements. The judge entered findings of fact and law on the record,
denied Darroch’s motion, and stated that the motion was frivolous. N.T.
Double Jeopardy Hearing, 6/13/16, at 54-61. Finally, the judge advised the
defendant on the record of his appellate rights under Pa.R.A.P. 1573. Id. at
60. In light of our discussion above regarding Darroch’s double jeopardy
claim, the trial court committed no error in denying Darroch’s motion to stay
for interlocutory appeal. Darroch’s second claim warrants no relief.
Lastly, Darroch claims that the evidence was insufficient to sustain his
convictions. The standard for a sufficiency claim is as follows:
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In reviewing the sufficiency of the evidence, we view all evidence
admitted at trial in the light most favorable to the Commonwealth,
as verdict winner, to see whether there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond
a reasonable doubt. This standard is equally applicable to cases
where the evidence is circumstantial rather than direct so long as
the combination of the evidence links the accused to a crime
beyond a reasonable doubt. Although a conviction must be based
on “more than mere suspicion or conjecture, the Commonwealth
need not establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of the evidence, the
Court may not substitute its judgment for that of the fact finder;
if the record contains support for the convictions, they may not be
disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013) (internal
citations omitted).
Darroch was convicted of aggravated indecent assault and indecent
assault. A person commits aggravated indecent assault if that person non-
consensually “engages in penetration, however slight, of the genitals or anus
of a complainant with a part of the person’s body for any purpose other than
good faith medical, hygienic or law enforcement procedures.” 18 Pa.C.S. §
3125. A person commits indecent assault if that person non-consensually
“has indecent contact with the complainant [or] causes the complainant to
have indecent contact with the person . . . for the purpose of arousing sexual
desire in the person or the complainant[.]” 18 Pa.C.S. § 3126. “Indecent
contact” is defined as “[a]ny touching of the sexual or other intimate parts of
the person for the purpose of arousing or gratifying sexual desire, in any
person.” 18 Pa.C.S.A. § 3101.
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This Court has held that “the uncorroborated testimony of a victim, if
believed by the trier of fact, is sufficient to convict a defendant, despite
evidence from a defense witness.” Commonwealth v. Filer, 846 A.2d 139,
141-42 (Pa. Super. 2004) (quoting Commonwealth v. Davis, 650 A.2d 452,
455 (Pa. Super. 1994)). Here, C.K. testified that Darroch penetrated her
vagina with his fingers without her consent and while she was asleep. N.T.
Trial, 6/13/16, at 119-21. She further testified that Darroch attempted to
remove her bra at the same time. Id. These instances of unwanted touching,
which include penetration, fulfill the elements of both aggravated indecent
assault and indecent assault. Moreover, the jury, as finder of fact, was free
to believe C.K.’s testimony. Commonwealth v. Estepp, 17 A.3d 939, 943–
44 (Pa. Super. 2011).3 As such, Darroch’s third and final claim warrants no
relief.
Judgment of sentence affirmed.
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3 Even so, C.K.’s testimony is supported by Darroch’s admission to the
investigating detectives that he “may have touched [the victim’s] private
area” and that he “fingered her.” N.T. Trial, 6/14/16, at 59. Despite Darroch’s
later equivocation, the jury had a sufficient basis to find Darroch guilty on all
charges.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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