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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RICARDO TORRES :
:
Appellant : No. 825 EDA 2016
Appeal from the Judgment of Sentence February 29, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013755-2014,
CP-51-CR-0013756-2014
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JULY 16, 2018
Ricardo Torres appeals from the judgment of sentence entered in the
Philadelphia County Court of Common Pleas following his convictions on two
counts each of corruption of minors, indecent assault of a person less than
thirteen, and unlawful contact with a minor.1 We affirm.
The trial court succinctly set forth the relevant facts and procedural
history of this case as follows:
During 2013 and 2014, the complainant A.S. – then between six
and seven years old – spent several days a week at her
grandmother’s house on East Clearfield Street in Philadelphia. The
grandmother’s husband, along with her then nine-year-old son
M.T. and adult stepson [Appellant], also lived in the house. On
more than one occasion, while A.S.’s siblings were playing with
____________________________________________
Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6301(a)(1)(ii); 3126(a)(7); and 6318(a)(1), respectively.
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M.T., [Appellant] took A.S. to an upstairs back bedroom located
behind M.T.’s room. He put her on his lap, and touched her vagina
over her clothing. Sometimes A.S.’s friend A.J., who lived across
the street from [Appellant], was present during the assault. A.S.
also saw [Appellant] touch A.J.’s “private parts” on more than one
occasion.
A.J. also used to frequent the house where [Appellant] lived
between 2013 and 2014. She was around seven years old at the
time. [Appellant] would put A.J. on his lap and touch “close to
[her] butt,” on her stomach, and in her vaginal area. The assaults
happened on more than one occasion, either in the downstairs
playroom, upstairs in M.T.’s room, or in [Appellant’s] stepmother’s
room.
At the close of the Commonwealth’s case, [the trial] court granted
[Appellant’s] motion for judgment of acquittal as to the two counts
of endangering the welfare of a child. The court found him guilty
of the remaining charges and deferred sentencing for a
presentence investigation, mental health evaluation, and
evaluation by the Sexual Offenders Assessment Board. On
February 29, 2016, the court sentenced him to five years of
probation. This appeal followed.
Trial Court Opinion, filed 3/22/17, at 1-2.
Appellant purportedly raises a single question on appeal. Upon review
of his brief, we observe that Appellant actually raises two distinct issues
regarding trial testimony from Christian Dozier, a forensic interviewer from
the Philadelphia Children’s Alliance. Below, we address the first issue, a
challenge under Pennsylvania Rule of Evidence 701 to Ms. Dozier’s lay witness
testimony about her impressions of A.J.’s disclosure. Appellant’s second issue
specifically contests the admission of Ms. Dozier’s testimony about typical
disclosures from a sexually abused child, given the Commonwealth’s failure to
qualify her as a behavioral expert on sexual violence under 42 Pa.C.S.A. §
5920. The latter challenge has not been preserved for our review.
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On appeal, a party may challenge the trial court’s admission of evidence
only if the party made a timely objection on the record at trial, and stated the
specific ground for excluding such evidence. See Pa.R.E. 103(a)(1)(A)-(B).
“Our Supreme Court’s rules on issue preservation simply do not allow the
parties to change their theories for relief indiscriminately as they move
through the trial and appellate processes.” Commonwealth v. Gordon, 528
A.2d 631, 639 (Pa. Super. 1987) (per curiam). “Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a).
If ordered, an appellant must file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). “The Statement shall
concisely identify each ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.
1925(b)(4)(ii). “When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.” Commonwealth v.
Allshouse, 969 A.2d 1236, 1239 (Pa. Super. 2009) (citation omitted).
At trial, Appellant objected to the question counsel for the
Commonwealth posed to Ms. Dozier, asking if A.J.’s disclosure of sexual abuse
was typical for a child. See N.T., Trial, 11/24/15, at 149. However, Appellant
specifically objected to the question’s relevance. See id. Appellant does not
raise any issue on appeal concerning the relevance of this testimony.
Also, Appellant’s Rule 1925(b) statement unambiguously objects to Ms.
Dozier’s alleged bolstering of A.J.’s testimony as a violation of Pa.R.E. 701.
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See Appellant’s Supplemental Statement of Errors Complained of on Appeal,
filed 8/22/16, at 2 (unpaginated). In its opinion, the trial court responds only
to Appellant’s challenge under Rule 701. See Trial Court Opinion, filed
3/22/17, at 2-3. Appellant’s first mention of 42 Pa.C.S.A. § 5920 is in his
appellate brief.
At trial, Appellant failed to specifically object to Ms. Dozier’s testimony
about other sexual abuse victims based on her lack of qualification as an
expert witness under § 5920. And his Rule 1925(b) statement was insufficient
to alert the trial court to his § 5920 claim. Therefore, we find this argument
waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b).
In his remaining dispute, Appellant argues Ms. Dozier testified, over
objection, to A.J.’s demeanor during her forensic interview. Appellant asserts
this evidence was not within the confines of lay witness opinion testimony
permitted by Pa.R.E. 701. Appellant contends that even if Ms. Dozier had
testified as an expert witness, this testimony constituted an impermissible
personal opinion of A.J.’s credibility and character for honesty. Appellant
insists Ms. Dozier’s statement about A.J.’s demeanor during the interview
bolstered A.J.’s credibility, and prevented him from obtaining a fair trial.
Appellant concludes we must vacate his judgment of sentence, and remand
for a new trial. We disagree.
“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion.” Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.
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2002) (citation omitted). “Accordingly, a ruling admitting evidence will not be
disturbed on appeal unless that ruling reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.” Commonwealth v. Berry, 172 A.3d 1, 3 (Pa. Super. 2017)
(citation omitted).
Pennsylvania Rule of Evidence 701 states that in cases where a witness
is not testifying as an expert, his or her opinion testimony must be limited to
what is: “(a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 701.” Pa.R.E. 701.
“Generally, lay witnesses may express personal opinions related to their
observations on a range of subject areas based on their personal experiences
that are helpful to the factfinder.” Berry, 172 A.3d at 3-4 (citations omitted).
“[L]ay opinion testimony embracing an ultimate issue in a case is admissible
as long as the witness perceived the events upon which his opinion is based.”
Commonwealth v. Bowser, 624 A.2d 125, 133 (Pa. Super. 1993) (citation
omitted).
At trial, counsel for the Commonwealth questioned Ms. Dozier about the
summary she wrote while conducting A.J.’s interview. See N.T., Trial,
11/24/15, at 140. After Ms. Dozier read the summary and refreshed her
recollection, counsel asked her to testify about her impressions of A.J.’s
disclosure at the time of the interview. See id., at 144. Appellant objected,
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on the basis that the Commonwealth was asking for “expert opinion about the
child’s credibility with regard to the disclosure.” Id., at 145. Counsel for the
Commonwealth denied that she was asking for a credibility assessment, and
again asked Ms. Dozier what she had written in her report after the court
overruled the objection. See id. Ms. Dozier replied that A.J.’s forensic
interview was consistent with the statements received in A.J.’s intake
materials. See id. She also stated A.J. relayed specific sensory details of the
incident, including that Appellant’s hands felt warm, and “like someone was
pinching her.” Id., at 145-146. Counsel for the Commonwealth then played
the video of the interview. See N.T., Trial, 11/24/15, at 146.
Appellant fails to explain how Ms. Dozier’s testimony violated Pa.R.E.
701. As Appellant points out in his appellate brief, opinion testimony regarding
A.J.’s credibility would have been improper even if Ms. Dozier had been
qualified as an expert. See Appellant’s Brief, at 12. However, at no point in
her testimony did Ms. Dozier express a belief that A.J. was telling the truth.
And aside from the erroneous assertion that Ms. Dozier vouched for A.J.’s
credibility, Appellant fails to explain how Ms. Dozier’s testimony was in
violation of Pa.R.E. 701. Thus, Appellant’s issue lacks merit. Accordingly, we
affirm his judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/18
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