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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRADLEY A. SUNDERLAND, SR. :
:
Appellant : No. 561 MDA 2017
Appeal from the Judgment of Sentence March 2, 2017
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000574-2015
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MAY 01, 2018
Appellant, Bradley A. Sunderland, Sr., appeals from the judgment of
sentence entered following his convictions of aggravated indecent assault
and incest.1 We affirm.
The trial court summarized the underlying facts of this case as follows:
The victim testified regarding events that she recalled
taking place between May, 2015 and November, 2015. On
November 1, 2015, around 1:00 AM or 2:00 AM, she was laying
on her stomach on the couch when [Appellant] “put his fingers in
my vagina.” N.T. 9/20/2016 at 30-31. [Appellant] asked if “he
could [have intercourse with] me” and she told him no. N.T.
9/20/2016 at 32. Then, “he got his penis out and actually
penetrated my vagina.” N.T. 9/20/2016 at 32. She further
testified that “[a]t the time that he penetrated me I tensed up
and he told me to come on and I said no.” N.T. 9/20/2016 at
33. A few times in the week leading up to this incident the
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1 18 Pa.C.S. §§ 3125(a)(1) and 4302(a), respectively.
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victim woke up to “[Appellant] standing over top of her with his
fingers inserted into her vagina.” N.T. 9/20/2016 at 212. The
victim testified that [Appellant] penetrated her vagina with his
fingers and penis, and that she did not consent.
Trial Court Opinion, 6/2/17, at 2.
Appellant was arrested on November 5, 2015, and was charged with
various sex offenses relating to his conduct with the victim. A preliminary
hearing was held on December 2, 2015, and the charges were bound over
for trial. On September 15, 2016, the Commonwealth filed a motion in
limine seeking to introduce at trial evidence of Appellant’s prior bad acts with
the victim, because they formed a res gestae leading up to the events
charged against Appellant. Immediately prior to the commencement of trial,
the court held a hearing on the Commonwealth’s motion in limine and
granted the Commonwealth’s request to admit the evidence of Appellant’s
prior bad acts. During the trial, Appellant objected to the questioning of the
victim pertaining to Appellant’s prior bad acts, and the trial court gave a
limiting instruction to the jury.
On September 20, 2016, at the conclusion of the jury trial, Appellant
was found guilty of aggravated indecent assault without consent and incest.
The jury found Appellant not guilty of rape, aggravated indecent assault by
forcible compulsion, and aggravated indecent assault of an unconscious
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victim.2 On March 2, 2017, the trial court sentenced Appellant to serve an
aggregate term of incarceration of four and one-half to nine years. On
March 27, 2017, the trial court held a hearing and determined that Appellant
was not a sexually violent predator. This timely appeal followed. Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Should the [trial c]ourt have denied Commonwealth’s Motion
in Limine – Notice of Prior Bad Acts, which sought to introduce
evidence that Appellant’s actions were part of a res gestae that
included a sequence of events leading up to the matters charged
in the complaint?
2. Should the Appellant have had the opportunity to fully cross-
examine the purported victim at the Preliminary Hearing about a
purported history of sexual abuse by Appellant which fell outside
of the specific time period of the charges before the [trial c]ourt?
Appellant’s Brief at 8.
Appellant first argues that the trial court erred in granting the
Commonwealth’s motion in limine. Appellant’s Brief at 24-39. Appellant
contends that the trial court erred in concluding that the res gestae
exception to the preclusion of prior bad acts evidence was applicable to the
facts of this case.
A motion in limine is a procedure for obtaining a ruling on the
admissibility of evidence prior to or during trial, but before the evidence has
been offered. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super.
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2 18 Pa.C.S. §§ 3121(a)(1), 3125(a)(2), and 3125(a)(4), respectively.
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2003). It is well settled that “[t]he admission of evidence is within the
sound discretion of the trial court, and will be reversed on appeal only upon
a showing that the trial court clearly abused its discretion.”
Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc)
(citing Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)).
Abuse of discretion requires a finding of misapplication of the law, a failure
to apply the law, or judgment by the trial court that exhibits bias, ill-will,
prejudice, partiality, or was manifestly unreasonable, as reflected by the
record. Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).
Our Supreme Court has discussed evidence of other bad acts and the
related exceptions as follows:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).
As this Court recently reiterated:
[w]hile evidence of prior bad acts is not admissible to show
criminal propensity, evidence of other crimes may be admissible
if it is relevant to show some other legitimate purpose.
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super.
2015). An exception to Rule 404(b) exists that permits the
admission of evidence where it became part of the history of the
case and formed part of the natural development of facts.
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Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa. 2015).
This exception is commonly referred to as the res gestae
exception. Id.
Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016).
Our Supreme Court has observed that a trial court is not “required to
sanitize the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at hand and form
part of the history and natural development of the events and offenses for
which the defendant is charged.” Commonwealth v. Paddy, 800 A.2d
294, 308 (Pa. 2002) (quoting Commonwealth v. Lark, 543 A.2d 491, 501
(Pa. 1988)). In addition, we note that, with regard to jury instructions,
“[t]he law presumes that the jury will follow the instructions of the court.”
Commonwealth v. Brown, 567 Pa. 272, 289, 786 A.2d 961, 971 (2001);
Commonwealth v. O'Hannon, 732 A.2d 1193, 1196 (Pa. 1999) (stating
“[a]bsent evidence to the contrary, the jury is presumed to have followed
the trial court’s instructions”).
In addressing Appellant’s issue, the trial court provided the following
analysis:
We granted the Commonwealth’s motion in limine seeking
to introduce [Appellant’s] prior sexual contact with the victim.
Pennsylvania courts recognize the res gestae exception to
Pennsylvania Rule of Evidence 404(b) that permits the admission
of evidence if it is part of the history of the case and is needed to
tell the complete story. Com. v. Hairston, 624 Pa. 143, 157, 84
A.3d 657, 665 (2014); Commonwealth v. Ivy, 2016 PA Super
183, 146 A.3d 241, 251 (Pa. Super. Ct. 2016). When a court
applies the res gestae exception, it still must balance the
prejudicial effect against the probative value. See Com. v.
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Brown, 2012 PA Super 150, 52 A.3d 320, 326 (Pa. Super. Ct.
2012) (citation omitted). This exception is properly applied
when the bad acts are part of the same transaction involving the
charged crime. Id. at 332. Res gestae evidence is particularly
important for fact-finders in sexual assault cases due to the lack
of direct evidence and lack of independent witnesses. Com. v.
Dillon, 2004 PA Super 457, 11 10, 863 A.2d 597, 601 (Pa.
Super. Ct. 2004), aff’d, 592 Pa. 351, 925 A.2d 131 (2007).
We held a hearing the morning of the trial, and granted
[the] Commonwealth’s motion that permitted the introduction of
[Appellant’s] prior bad acts for the limited purpose to tell the
complete story. The victim testified that prior to the incidents in
20153, [Appellant] “played doctor” with her three or four times
when she was around the age of five to seven. N.T. 9/20/2016
at 53-58. This testimony gave the full context to the jury of the
victim/perpetrator history. Even more significant in this case
was the [familial] relationship. The jury was entitled to know
that this was not a typical [familial] relationship. The illicit
conduct by the perpetrator started years before the sexual
assault was tried in our courtroom, however we believed such
testimony was probative. Immediately following the testimony,
we gave a limiting instruction to the jury directing them to use
the evidence solely for the purpose of understanding the full
story leading up to the incident.4 The probative value of the
testimony, which allowed the jury to fully understand the events
surrounding the relationship between victim and [Appellant],
outweighed any prejudicial impact to [Appellant].
3She was seventeen years old at the time of [the]
2015 incidents.
4 The cautionary instruction given was as follows:
Ladies and gentlemen, let me explain
something and counsel’s approached the
bench a few times and I need to explain
something. As I explained earlier, I’m
the judge of the law and you’re the judge
of the facts. You’re hearing evidence
right now of alleged conduct of
[Appellant] that allegedly happened
when [the victim] was very young. The
testimony is being presented for the
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limited purpose of permitting [the victim]
to explain the series of events leading up
to the conduct that’s charged in the
Information or the indictment.
You can only consider this testimony of
what happened when she was younger
for the limited purpose of the
development of the case from [the
victim’s] perspective. [Appellant] is not
charged with this conduct from when she
was younger and you may only consider
conduct which occurred between May 1,
2015 and November 1, 2015.
N.T. 9/20/2016 at 57-58.
Trial Court Opinion, 6/2/17, at 3-4. We agree with the trial court’s
determination.
Our review of the record reflects that the Commonwealth questioned
the victim regarding incidents of sexual conduct and “playing doctor” that
occurred when she was in grade school. N.T., 9/20/16, at 53-57. Defense
counsel lodged several objections to the Commonwealth’s line of
questioning. Id. The trial court overruled the objections and allowed the
questioning. Id. As the direct examination of the victim progressed,
defense counsel lodged another objection, and the trial court gave an apt
curative instruction to the jury explaining that the testimony of Appellant’s
previous conduct was to be used “for the limited purpose of the development
of the case from [the victim’s] perspective.” Id. at 56-58. We agree with
the trial court that this evidence of Appellant’s prior conduct with the victim
establishes part of the history of the case and formed part of the natural
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development of facts. Accordingly, we discern no error or abuse of
discretion by the trial court in admitting the evidence. Furthermore, there is
no evidence that the jury ignored the trial court’s cautionary instructions
directing the jury to consider the evidence for a limited purpose, and,
“absent evidence to the contrary, the jury is presumed to have followed the
court’s instructions.” O'Hannon, 732 A.2d at 1196. Hence, Appellant’s
issue does not merit relief.
Appellant next argues that he is entitled to a new trial because, at the
preliminary hearing, he should have been permitted to cross-examine the
victim regarding her allegations of Appellant’s inappropriate conduct with her
that preceded the time period of the instant offenses. Appellant’s Brief at
39-44. Before we address the merits of Appellant’s issue, we must
determine whether the claim presented has been properly preserved for our
consideration on appeal.
Our Courts have consistently ruled that, where a trial court directs a
defendant to file a concise statement pursuant to Pennsylvania Rule of
Appellate Procedure 1925, any issues not raised in that statement shall be
waived. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008)
(citing Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998)). In
Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002), our Supreme
Court reaffirmed its holding in Lord and stated: “In Lord, however, this
Court eliminated any aspect of discretion and established a bright-line rule
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for waiver under Rule 1925 …. Thus, waiver under Rule 1925 is automatic.”
See also Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa. Super.
2008) (noting that Lord “requires a finding of waiver whenever an appellant
fails to raise an issue in a court-ordered Pa.R.A.P. 1925(b) statement”).
We are mindful that Rule 1925 is intended to aid trial judges in
identifying and focusing upon those issues that the parties plan to raise on
appeal. The absence of a trial court opinion addressing a particular claim
poses a substantial impediment to meaningful and effective appellate
review. Commonwealth v. Lemon, 804 A.2d 34, 36 (Pa. Super. 2002).
Rule 1925 is thus a crucial component of the appellate process. Lemon,
804 A.2d at 37. “When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.” Commonwealth v.
Dowling, 778 A.2d 683, 686 (Pa. Super. 2001). In addition, claims that are
not raised before the trial court are waived. See Commonwealth v.
Lopata, 754 A.2d 685, 689 (Pa. Super. 2000) (stating that “[a] claim which
has not been raised before the trial court cannot be raised for the first time
on appeal.”); Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super.
2006) (citing Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa. Super.
1987) (reiterating that “[a] theory of error different from that presented to
the trial jurist is waived on appeal, even if both theories support the same
basic allegation of error which gives rise to the claim for relief.”).
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Our review of the certified record reflects that on April 3, 2017, the
trial court issued an order directing Appellant to file a Pa.R.A.P. 1925(b)
statement within twenty-one days. The record further reflects Appellant
filed his Rule 1925(b) statement on April 13, 2019. Appellant’s Rule 1925(b)
statement contains three issues. The first issue raised a claim pertaining to
the sufficiency of the evidence, and the second issue alleged trial court error
in granting the Commonwealth’s motion in limine. Pa.R.A.P. 1925(b)
Statement, 4/13/17, at 1. The third issue presented a claim challenging
cross-examination of the victim, as follows:
3. The Trial Court erred as a matter of law when it denied
[Appellant] the opportunity to cross-examine the alleged victim
relative to any history of sexual abuse by [Appellant] which fell
outside of the time period of the specific charges in the
complaint.
Pa.R.A.P. 1925(b) Statement, 4/13/17, at 1 (emphasis added).
Thus, Appellant properly preserved for review a claim alleging error on
the part of the trial court in purportedly denying Appellant the opportunity to
cross-examine the victim. In his Rule 1925(b) statement, however,
Appellant never specifically raised to the trial court the theory that he was
denied an opportunity to cross-examine the victim at the preliminary
hearing. Because Appellant failed to present an issue challenging the denial
of cross-examination of the victim at the preliminary hearing, the trial court
limited its review to a discussion concerning cross-examination of the victim
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during the jury trial. Specifically, the trial court addressed Appellant’s claim
as follows:
The last issue raised indicates that the [trial c]ourt failed to
permit cross[-]examination of the victim regarding prior sexual
acts outside of the time period of the specific charges. The
record fails to support any such argument. In fact, the [trial
c]ourt expressly permitted defense counsel the opportunity to
cross-examine the victim regarding the prior incidents.5 N.T.
9/20/2016 at 6.
5 The [trial c]ourt stated, “[o]bviously if I let [the
alleged prior bad acts] in, you’re going to be able to
explore that on cross examination. [The District
Attorney] isn’t going to be able to object if I do let it
in.” N.T. 9/20/2016 at 6.
Trial Court Opinion, 6/2/17, at 4. Therefore, to the extent Appellant now
attempts to challenge whether he was improperly denied an opportunity to
cross-examine the victim at the preliminary hearing, we conclude that
this argument is waived because Appellant failed to present this specific
issue to the trial court in his Rule 1925(b) statement.
Even if the issue Appellant now presents in his appellate brief were not
waived, we would conclude that it does not merit relief. The purpose of a
preliminary hearing is to avoid the incarceration or trial of a defendant
unless there is sufficient evidence to establish a crime was committed and
the probability the defendant could be connected with the crime.
Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991) (citing
Commonwealth v. Wojdak, 466 A.2d 991 (Pa. 1983)). Its purpose is not
to prove a defendant’s guilt. Id. Therefore, the weight and credibility of the
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evidence are not factors at this stage, and the Commonwealth need only
demonstrate sufficient probable cause to believe the person charged has
committed the offense. Commonwealth v. Marti, 779 A.2d 1177, 1180
(Pa. Super. 2001) (citing Wojdak, 466 A.2d at 1000). Further, once an
appellant has gone to trial and been found guilty of the crime, any defect in
the preliminary hearing is rendered immaterial. Commonwealth v.
Worrall, 609 A.2d 851, 852 (Pa. Super. 1992). We have long stated that
“the failure to establish a prima facie case at a preliminary hearing ‘is clearly
immaterial where at the trial the Commonwealth met its burden by proving
the [offense] beyond a reasonable doubt.’” Commonwealth v. Troop, 571
A.2d 1084, 1088 (Pa. Super. 1990) (quoting Commonwealth v.
McCullough, 461 A.2d 1229, 1231 (Pa. 1983)). See Commonwealth v.
Fewell, 654 A.2d 1109, 1112 (Pa. Super. 1995) (holding that an alleged
error at the preliminary hearing stage is moot once the appellant was
convicted by a jury at a fair and impartial trial). See also Commonwealth
v. Murray, 502 A.2d 624, 630 (Pa. Super. 1985) (stating that “[l]ogically, a
new preliminary hearing is foolish once the evidentiary trial is completed
without reversible error.”).
Our review of the record reflects that, at the preliminary hearing, the
magisterial district judge limited defense counsel’s cross-examination of the
victim and stated, “Let’s talk about the events that are charged in the
Complaint here.” N.T., 12/2/15, at 19-20. Although Appellant was deprived
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of an opportunity to cross-examine the victim concerning her recollection of
uncharged incidents that occurred with Appellant, we observe that the
purpose of the preliminary hearing was for the Commonwealth to establish a
prima facie case that Appellant committed the crimes that were actually
charged. It is undisputed that a jury later found Appellant guilty of two
properly charged crimes, beyond a reasonable doubt. Therefore, any
alleged error at the preliminary hearing is immaterial and moot. Troop, 571
A.2d at 1088; Fewell, 654 A.2d at 1112. Accordingly, if this issue had not
been waived, we would conclude Appellant is entitled to no relief on this
claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2018
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