Com. v. Lively, J.

J-A28023-19

2020 PA Super 100

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

v.

JEROME LIVELY

Appellant No. 808 EDA 2018

Appeal from the Judgment of Sentence entered February 13, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-0002561-2017,
CP-51-CR-0002963-2017

BEFORE: PANELLA, P.J., STABILE, J., and COLINS, J.*

OPINION BY STABILE, J.: FILED APRIL 20, 2020

Appellant, Jerome Lively, appeals from the judgment of sentence

entered on February 13, 2018 in the Court of Common Pleas of Philadelphia

County after a jury convicted him of two counts of rape of a child, two counts

of unlawful contact with a minor, and various other offenses involving two of

his nieces. Appellant argues the trial court erred in consolidating the separate

criminal indictments relating to the two victims, in permitting introduction of

videotaped interviews of the victims, and in imposing an excessive aggregate

sentence of 60 to 120 years’ incarceration. Upon review, we affirm.1

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* Retired Senior Judge assigned to the Superior Court.
1 A single notice of appeal was filed in this case from judgments entered on
two separate dockets on February 13, 2018. Because the judgments appealed
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The trial court provided the following summary of the underlying facts:

When D.M. (Complainant #1) was 7 years old, the Appellant (her
uncle) forced her into the laundry room of her parents’ home on
North 48th Street, pulled her pants down, sat her on the edge of
the washer, and began touching her genitals. When D.M. asked
to leave and use the bathroom, the Appellant instructed her to
urinate in his mouth. When D.M. was 8 years old, the Appellant
attempted to insert his penis into her vagina while her parents
were out shopping and her siblings were home. The Appellant
only stopped when she began screaming from the pain. The
Appellant performed oral sex and used a vibrator on D.M. multiple
times when she was between 7 and 10 years of age. The Appellant
would give her candy, arts and crafts, and toys, telling her: “don’t
say nothing,” and “this is for being good.” The encounters stopped
when she moved out of state with her parents.

D.M.’s younger sister, J.B. (Complainant #2), was 4 years old
when the Appellant pulled down her pants and touched her
genitals. On multiple occasions, the Appellant would penetrate
J.B.’s vagina with his penis while she was sitting on his lap. On a
separate occasion, the Appellant entered her bedroom and
inserted his penis into her anus. The Appellant continued to
sexually abuse J.B. until she was 7 years old, after she and her
family had moved out of state.

Trial Court Opinion, 1/18/19, at 5-6 (footnotes with references to notes of

testimony omitted, including a footnote reflecting one additional incident of

abuse perpetrated against J.B. after the family moved).

____________________________________________

from predated our Supreme Court’s June 1, 2018 decision in Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018), separate notices of appeal were not
mandated. See Walker, 185 A.3d at 977 (explaining that in future cases,
Pa.R.A.P. 341(a) will require separate notices of appeal from a single order
resolving issues on more than one docket).

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On December 6, 2017, a jury found Appellant guilty of two counts of

Rape of a Child (F1), two counts of Involuntary Deviate Sexual Intercourse

with a Child (F1), two counts of Unlawful Contact with a Minor (F1), two counts

of Aggravated Indecent Assault of a Child (F1), two counts of Endangering the

Welfare of Children (F3), two counts of Indecent Assault on a Person under 13

(F3), and two counts of Corruption of Minors (M1). 2 On February 13, 2018,

with regard to his convictions involving D.M., the trial court sentenced

Appellant to 25 to 50 years for rape and ten to 20 years for unlawful contact.

With respect to his convictions involving J.B., the court sentenced Appellant

to 20 to 40 years for rape and five to ten years for unlawful contact. No

further penalties were imposed for the remaining convictions. All sentences

were set to run consecutively, resulting in an aggregate sentence of 60 to 120

years in prison.

Appellant filed a post-sentence motion seeking reconsideration of his

sentence. The motion was denied by operation of law. Appellant filed a timely

appeal to this Court and both Appellant and the trial court complied with

Pa.R.A.P. 1925. Appellant now asks us to consider the following three issues:

1. Did the lower trial court commit reversible error by granting
the motion of the Commonwealth to consolidate two separate
criminal indictments [] involving two separate alleged child
victims where the explosive multiple allegations of child rape,
sexual assault, corruption of minors, REAP, unlawful contact
with [] minors, aggravated indecent assault, unlawful restraint,
____________________________________________

2 18 Pa.C.S.A. §§ 3121(c), 3123(b), 6318(a)(1), 3125(b), 4304(a)(1),
3126(a)(7), and 6301(a)(1)(i), respectively.

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sexual abuse of a child, endangering the welfare of a child,
indecent exposure and simple assault did not inflame the
passion of the jury and unduly prejudice the appellant and deny
the appellant a fair and balanced jury trial?

2. Did the lower trial court commit reversible error by permitting
the Commonwealth to enter into evidence the inadmissible
hearsay video taped interviews of the alleged child victims, DM
and JB, when both alleged victims did testify live before the
jury and the inadmissible hearsay testimony of Michell[e] Kline,
MSS, LCSW (the social worker from Children’s [] Alliance who
conducted the videotaped interviews)?

3. Did the lower trial court commit revers[i]ble error and violate
the constitutional rights of the appellant when the court
sentenced the appellant to a combined consecutive sentence of
sixty (60) to one hundred and twenty (120) years[?]

Appellant’s Brief at 2-3 (some capitalization omitted).

In his first issue, Appellant asserts trial court error for granting the

Commonwealth’s motion to consolidate the indictment relating to D.M. with

the indictment relating to J.B. The gist of his argument is that he was

prejudiced by the consolidation in light of the disturbing nature of the sexual

crimes with which he was charged.

In Commonwealth v. Knoble, 188 A.3d 1199 (Pa. Super. 2018), this

Court faced a similar challenge to consolidation and assertion of prejudice.

Rejecting Knoble’s claims, the Court stated, “Whether to join or sever offenses

for trial is within the trial court’s discretion and will not be reversed on appeal

absent a manifest abuse thereof, or prejudice and clear injustice to the

defendant.” Id. at 1205 (quoting Commonwealth v. Wholaver, 989 A.2d

883, 898 (Pa. 2010)).

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In Knoble, this Court looked to Pa.R.Crim.P. 582, and explained that

distinct offenses which do not arise out of the same act or
transaction may be tried together if the “evidence of each of the
offenses would be admissible in a separate trial for the other and
is capable of separation by the jury so that there is no danger of
confusion[ ] or the offenses charged are based on the same act or
transaction.”

Knoble, 188 A.3d at 1205 (quoting Pa.R.Crim.P. 582(A)(1)(a)-(b)). “If the

trial court finds that the evidence is admissible and the jury can separate the

charges, the court must also consider whether consolidation would unduly

prejudice the defendant.” Id. (citing Commonwealth v. Thomas, 879 A.2d

246, 260 (Pa. Super. 2005)). Further,

[w]hile evidence of other criminal behavior is not admissible to
demonstrate a defendant’s propensity to commit crimes, it may
be admissible to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity[,] or absence of mistake or accident so
long as the probative value of the evidence outweighs its
prejudicial effect.”

Id. (quoting Commonwealth v. Smith, 47 A.3d 862, 867 (Pa. Super. 2012)

(citing Pa.R.E. 404(b)(2),(3)).

The trial court in the instant case concluded the indictments were

properly consolidated.

In the case at bar, evidence from each case would be admissible
at trial for the other because it would tend to prove the Appellant’s
“common design” to abuse his nieces. The evidence from each
case was also sufficiently similar to warrant consolidation. The
Complainants in this case were both female, under the age of ten,
nieces of the Appellant, and living in the same household on North
48th Street in Philadelphia. Moreover, the Appellant began his
abusive relationship with both Complainants by taking them to
secluded rooms in the house on 48th Street, pulling down their
pants and touching their genitals. He also used candy and toys in

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both cases to groom the children over a period of years. Finally
both Complainants disclosed the abuse to their mother in the
same week, and their abuse only ceased when their parents
moved them out of the state. Given the similarities between both
cases, evidence of each offense would have been admissible in a
separate trial for the other to prove “common plan and scheme.”
Hence, the first prong of the test for consolidation was met.

While these similarities were sufficient to consolidate both
matters, each offense was also distinct enough to be capable of
separation by the jury so that there was no confusion. Despite
being sisters and living in the same house, each Complainant had
different first and last names. The Complainants also had a four
year age difference. Though a 4-year age difference may seem
insignificant, it is a large enough difference between children.
Furthermore, the evidence for both cases was not so overly
technical or complex to confuse the jury. Therefore, the second
prong of [the] consolidation test was met.

The third prong of the test is whether the danger of prejudice to
the Appellant outweighed the benefit of consolidation.
[Commonwealth v. Newman, 598 A.2d 275, 279 (Pa. 1991)].
The Appellant claims that he was prejudiced because the two
consolidated matters prevented him from defending against
D.M.’s allegations.

...

However, the court’s decision to consolidate D.M.’s and J.B.’s
cases had minimum impact or prejudice on the Appellant’s
attorney’s defense strategy [because the Rape Shield Law would
have precluded evidence about D.M.’s past sexual conduct and
because the trial court had already precluded testimony about the
assault of D.M.’s brother by his father.] Therefore, Appellant was
not entitled to separate trials merely because consolidation
prevented him from referencing a victim’s alleged unrelated
sexual behavior or history with others.

Trial Court Opinion, 1/18/19, at 9-11 (footnotes omitted).

We find no abuse of discretion in the trial court’s decision to consolidate

the indictments in this case. As reflected in Pa.R.Crim.P. 582, and as

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illustrated in Knoble, Smith, and Newman, consolidation was appropriate in

the instant case because the evidence of each of the offenses relating to one

victim would be admissible in a separate trial for the other and was capable

of separation by the jury so as to eliminate confusion. Further, in this case,

the evidence tended to prove Appellant’s common design or plan in the actions

taken against his nieces and the probative value of the evidence outweighed

its prejudicial effect. Appellant’s first issue fails for lack of merit.

Appellant next contends the trial court committed reversible error in

permitting introduction of videotaped interviews with Appellant’s victims that

were conducted by the Philadelphia Children’s Alliance (PCA). As a challenge

to the admission of evidence, we review Appellant’s claims for abuse of

discretion. Commonwealth v. Bond, 190 A.3d 664, 667 (Pa. Super. 2018).3

As indicated in Bond, our standard of review is very narrow. “To constitute

reversible error, an evidentiary ruling must not only be erroneous, but also

harmful or prejudicial to the complaining party.” Id. (quoting

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012), appeal denied,

62 A.3d 379 (Pa. 2013)).

____________________________________________

3 Bond, which involved a similar challenge to the trial court’s admission of a
forensic interview conducted by the PCA, was decided approximately seven
months after the trial in this case but prior to the trial court’s issuance of an
addendum to its Rule 1925(a) opinion in which the court addressed this
Court’s ruling in Bond. See Addendum Opinion, 3/4/19, at 2-5.

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As in Bond, the trial court here admitted videotaped interviews as prior

consistent statements under Pa.R.E. 613(c), which provides:

(c) Witness’s Prior Consistent Statement to Rehabilitate.
Evidence of a witness’s prior consistent statement is admissible to
rehabilitate the witness’s credibility if the opposing party is given
an opportunity to cross-examine the witness about the statement
and the statement is offered to rebut an express or implied charge
of:
(1) fabrication, bias, improper influence or motive, or faulty
memory and the statement was made before that which has
been charged existed or arose; or
(2) having made a prior inconsistent statement, which the
witness has denied or explained, and the consistent
statement supports the witness’s denial or explanation.

Pa.R.Crim.P. 613(c) (emphasis added).

Relying on Bond, Appellant argues that we should find the trial court

erred by permitting introduction of the videotaped interviews. In Bond, we

determined the trial court erred in light of Rule 613(c)(1), because “[p]ut

simply, Child’s statements in the Interview Video were not ‘made before’ the

alleged fabrication, as Rule 613(c)(1) expressly requires. Moreover, this case

does not involve a lapse in memory, another basis for admitting a prior

consistent statement under Rule 613(c)(1).” Bond, 190 A.3d at 170. We

also rejected the Commonwealth’s assertion “that the trial court’s ruling is

salvageable under Rule 613(c)(2)[.]” Id. As we observed, with respect to

Rule 613(c)(2), the “Commonwealth fail[ed] to cite any place in the record

where Child denied having made a prior inconsistent statement or explained

the inconsistencies in her testimony.” Id.

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While we do not disagree with Appellant’s argument insofar as Rule

613(c)(1) is concerned, we note Appellant has failed to discuss the

applicability of Rule 613(c)(2). As the Commonwealth notes:

[T]he forensic interviews at issue in Bond were not admissible
under PA.R.E. 613(c)(2), because there was no place in the record
where the child “denied having made a prior inconsistent
statement or explained the inconsistencies in her testimony.”
Bond, 190 A.3d at 670. In contrast, here, D.M. first denied that
[Appellant] had touched her before revealing what happened. The
videotaped forensic interview setting forth [Appellant’s] conduct
thereby rehabilitated her testimony under Pa.R.E. 613(c)(2). It
also supported D.M.’s explanation for why she chose January 2017
to reveal to her mother the sexual assaults committed by
[Appellant], after she had been impeached with what [Appellant]
described as the “cell phone incident.” Similarly, J.B. had denied
that [Appellant] had inappropriately touched her. In addition,
[Appellant’s] own theory was that J.B. revealed [Appellant’s]
misconduct with her out of feelings of guilt for having reported her
sister’s supposed cell phone use to their mother. That the videos
supported the victim’s trial testimony served to rehabilitate that
testimony where they had at one time denied the allegations. The
interviews were therefore consistent with, and admissible to
rehabilitate, their trial explanations for why each revealed the
sexual assaults as she did. Accordingly, the videos of the forensic
interviews were admissible under Pa.R.E. 613(c)(2), as applied in
Bond.

Commonwealth Brief at 31-32 (footnote and references to notes of testimony

omitted). As the trial court stated, “Given that the Appellant tried to

demonstrate that the Complainants had fabricated their stories, the

Commonwealth properly presented the forensic interview video as prior

consistent statements to rehabilitate their credibility.” Trial Court Opinion,

1/18/19, at 30. We find no abuse of discretion in the trial court’s

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determination that the videotaped interviews were properly admitted under

Rule 613(c)(2).

Even if admissibility constituted an abuse of discretion, Appellant must

demonstrate that he was prejudiced as a result of the admission of the

interviews. Bond, 190 A.3d at 667. Here, the trial court contends that any

error in admitting the video was harmless error and Appellant’s claim should

fail, just as it did in Bond. Addendum Opinion, 3/4/19 at 2. The court

reasoned:

The harmless error doctrine “reflects the reality that the accused
is entitled to a fair trial, not a perfect trial.” Commonwealth v.
Reese, 31 A.3d 708, 719 (Pa. Super. 2011) (quoting
Commonwealth v. West, 834 A.2d 625, 634 (Pa. Super. 2003).
Error is harmless where the appellate court concludes beyond a
reasonable doubt that the error could not have contributed to the
verdict. Commonwealth v. Mitchell, 839 A.2d 202, 214 (Pa.
2003). In Bond, the Court noted that the Pennsylvania Supreme
Court has found a lack of prejudice where defense counsel has
“meticulously cross examined” the witness with evidence of
motive to lie and where there is other “overwhelming” evidence
of the defendant’s guilt. Bond, 190 A.3d at 671 (citing
Commonwealth v. Busanet, 54 A.3d 35, 65-67 (Pa. 2012)).
The Superior Court found that the defense counsel cross-
examined the victim extensively and brought out testimony that
the appellant had penetrated the victim. Id. at 671-72. Since
counsel cross-examined the victim on the pertinent portions of the
interview, the Court held that the video itself was cumulative, and
therefore harmless. Id. at 673 (citing Commonwealth v.
Allshouse, 36 A.3d 163, 182 (Pa. 2012) (concluding that
erroneous admission of cumulative evidence was harmless)).

Id. at 3-4.

Although the trial court argues it did not commit error by permitting

presentation of the video interviews as prior consistent statements rebutting

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Appellant’s claim of fabrication, it suggests that any error in its ruling

constitutes harmless error, as was the case in Bond. Id. at 4. “The main

reason is that defense counsel cross-examined both victims extensively

regarding their motive to lie.” Id. “Moreover, counsel cross-examined D.M.

about the specific acts that she alleged the Appellant did to her” and

“extensively cross-examined the social worker who conducted the interview.

Furthermore, there was an overwhelming amount of testimony from both

Complainants about the Appellant’s sexual offenses committed against them.”

Id. at 4-5.4 As such, the admission of the video “was merely cumulative, and

therefore harmless under Bond.” Id. at 5.

Additionally, as the Commonwealth argues, while Appellant contends

the videotaped interviews were “inflammatory,” Appellant’s Brief at 9, he did

not explain how the admitted prior consistent statements either augmented

or bolstered the victims’ credibility. Commonwealth Brief at 33 (citing Bond,

190 A.3d at 673). Rather, he simply asserted that he was denied a fair trial

by virtue of the Commonwealth’s “Unconstitutional Trial Tactic.” Appellant’s

Brief at 9-10.

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4 We note that the trial court offered Appellant’s counsel the opportunity to
call either victim back to the stand after the videotaped interviews were shown
to the jury “to explore some of the information that may have been brought
out [in the videotaped interview] that wasn’t covered on direct by the
Commonwealth relating to either victim” to avoid the assertion of “any
confrontational issues” on appeal. N.T. Trial, 11/30/17, at 163-64. Counsel
did not recall either victim.

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Under the facts of this case, we conclude the use of the videotaped

interviews was proper under Rule 613(c)(2). However, even if it were

considered error on the part of the trial court, Appellant has failed to

demonstrate how the error was anything but harmless.

As part of his second issue, Appellant also contends the trial court

abused its discretion by permitting “the inadmissible hearsay testimony of

Michell[e] Kline,” the social worker from PCA who conducted the videotaped

interviews. Appellant’s Brief at 2-3. Essentially, without citation to the record,

Appellant contends that Ms. Kline bolstered the “hearsay testimony” from the

interviews with her “additional hearsay” testimony that she presented as “a

de facto Expert Witness.” Appellant’s Brief at 9. However, as the trial court

recognized, “the Commonwealth did not present Ms. Kline as an expert

witness. After presenting Ms. Kline’s background information, the

Commonwealth never offered her testimony as expert opinion.” Trial Court

Opinion, 1/18/19, at 31 (emphasis in original). Further, as the

Commonwealth observes, “On direct, Ms. [Kline] testified to the actions she

took and persons she spoke to, and authenticated the videos of the prior

consistent statements, none of which testimony was hearsay. She could

testify to all of her actions whether or not the videos were admitted as prior

consistent statements.” Commonwealth Brief at 35 (citing Commonwealth

v. Weiss, 81 A.3d 767, 803 (Pa. 2013) (footnote and references to notes of

testimony omitted)). We find no merit to Appellant’s assertions regarding the

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testimony of Ms. Kline. Appellant’s second issue does not afford him any basis

for relief.

In his third issue, Appellant argues that the trial court imposed an

excessive sentence. As such, Appellant presents a challenge to the

discretionary aspects of his sentence. As this Court has explained:

Our standard of review in assessing whether a trial court has erred
in fashioning a sentence is well settled. “[T]he proper standard of
review when considering whether to affirm the sentencing court’s
determination is an abuse of discretion.” Commonwealth v.
Provenzano, [] 50 A.3d 148, 154 (Pa. Super. 2012) (quoting
Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (Pa.
2007)).

Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa. Super. 2017). “A

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)

(citation omitted).

In accordance with Pa.R.A.P. 2119(f),

An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in a separate section
of the brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence. The statement shall immediately precede the argument
on the merits with respect to the discretionary aspects of the
sentence.

Despite the rule’s mandate, Appellant has failed to include a Rule

2119(f) statement in his brief. “If a defendant fails to include an issue in his

Rule 2119(f) statement, and the Commonwealth objects, then the issue is

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waived and this Court may not review the claim.” Commonwealth v. Karns,

50 A.3d 158, 166 (Pa. Super. 2012), appeal denied, 619 Pa. 721, 65 A.3d 413

(2013) (citation omitted). Because the Commonwealth has objected to

Appellant’s failure to include a Rule 2119(f) statement, see Commonwealth

Brief at 38, we may not review the claim. Appellant’s sentencing claim fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/20/20

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