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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LUIS ALEJANDRO GENAO :
:
Appellant : No. 1211 MDA 2019
Appeal from the Judgment of Sentence Entered July 15, 2019
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003806-2017
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED AUGUST 21, 2020
Appellant, Luis Alejandro Genao, appeals from the judgment of sentence
entered in the Luzerne County Court of Common Pleas, following his jury trial
convictions for rape of a child, involuntary deviate sexual intercourse (“IDSI”)
with a child, two counts of indecent assault, two counts of corruption of minors
(“COM”), and endangering the welfare of a child (“EWOC”).1 We affirm.
The relevant facts and procedural history of this case are as follows. On
December 5, 2017, the Commonwealth charged Appellant with the
aforementioned offenses in connection with the sexual abuse of his
stepdaughter (“Victim”) from the time Victim was approximately nine to
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118 Pa.C.S.A. §§ 3121(c), 3123(b), 3126(a)(7), 3126(a)(8), 6301(a)(1)(ii),
6301(a)(1)(i), and 4304(a)(1), respectively.
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twelve years old.2 During that time, Appellant raped Victim and performed
oral sex on her, among other things. When Victim was around twelve years
old, Appellant stopped physically abusing her but continued to make sexually
explicit comments about her body. When Victim was around sixteen years
old, she disclosed some of the abuse to her mother, Appellant’s wife. Victim’s
mother did not believe the allegations and sent Victim to live with her
biological father. After Victim disclosed the sexual abuse to her father, he
asked that Victim visit her maternal aunt in New York City to repeat the
allegations. Victim’s father does not speak English well and had difficulty
processing the allegations. Victim then disclosed the details of the sexual
abuse to her aunt, who reported the abuse to the proper authorities.
Appellant proceeded to a jury trial on March 19, 2019. At trial, the
Commonwealth presented testimony from Victim, Victim’s father, Victim’s
maternal aunt, Roberta Fratzola, a licensed professional counselor specializing
in delayed reporting in child sexual abuse cases, Sandra Federo, a nurse
practitioner who examined Victim after the abuse allegations, and Detective
David Rodick. Appellant testified in his defense and presented testimony from
Victim’s mother, Victim’s biological brother, and four character witnesses.
On the second day of trial, Juror #11 approached the tipstaff, and said
she was uncomfortable with the testimony from the first day of trial and did
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2 Victim was born in August 2000.
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not sleep at all that evening. The court brought Juror #11 into chambers and
questioned her about her concerns. The juror indicated the subject matter of
the case made her nervous. The court questioned the juror about her ability
to be fair and impartial under the circumstances, and the juror agreed she
could be fair and impartial. The juror reiterated twice more that she could be
fair and impartial notwithstanding her discomfort with the subject matter.
Upon Appellant’s motion to strike Juror #11, the court agreed to question her
again on the record, and to permit the parties to examine her.
The following exchange took place:
[The court]: [Juror #11], you spoke to my tipstaff this
morning and said you had concerns about the subject
matter in this trial and that you [had] trouble sleeping last
night?
[Juror #11]: Um-hum.
[The court]: We previously brought you into chambers
and went over that with you. We’re going to do it now again
on the record—
[Juror #11]: Okay.
[The court]: —to make sure we have a clean record in this
case.
[Juror #11]: Sure.
[The court]: Your concerns are what with this trial?
* * *
[Juror #11]: The subject matter was more, I guess, why I
didn’t sleep well.
[The court]: Okay. Obviously, this is a serious matter.
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[Juror #11]: Right.
[The court]: And my question to you is—I know you’ve
expressed these concerns to us. Can you still be fair and
impartial in this case? Can you listen to the evidence? Can
you follow the instructions of the Court? And can you make
a decision in this case based upon the evidence that you
believe and the instructions by the Court in the law? Could
you do that?
[Juror #11]: Yes.
[The court]: Okay. Could you still be fair and impartial to
both sides?
[Juror #11]: Yes.
* * *
[The court]: Counsel, any questions?
[Defense]: Am I correct you’ve already formed an
opinion as to the guilt of [Appellant]?
[Juror #11]: No.
[Defense]: No other questions.
* * *
[The court]: As we sit here today in my chambers at 9:18
in the morning on Wednesday morning, you have not
formed any fixed opinion in this case?
[Juror #11]: No, I haven’t heard everything yet.
[The court]: Okay. And you can keep a clear and open
mind going forward?
[Juror #11]: Yes.
[The court]: And will you have the ability to follow the
instructions that I give you on the law and determine the
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facts as you see them—because you’re the fact finder in this
case, you make the decision—could you do that?
[Juror #11]: Yes.
[The court]: Okay. Could you set aside your feelings
about the subject matter of this case and decide this case
based upon the evidence that you believe and the law as I
instruct you?
[Juror #11]: Yes. I’ll listen to the facts.
[The court]: And as you sit here today at this time, you
do not have a fixed opinion on this case?
[Juror #11]: No, I do not.
[The court]: Okay. Thank you very much.
[Juror #11]: Thank you.
(N.T. Trial, 3/20/19, at 197-200). Based on the court’s colloquy, the court
denied Appellant’s motion to strike Juror #11. The court stated: “I find [Juror
#11] does not have a fixed opinion and that she can listen and follow the
instructions and listen to the evidence and make a decision based upon the
evidence that she believes and the law as I instruct her.” (Id. at 200-01).
During the charging conference, the defense requested a “low-grade”
jury instruction concerning expert Roberta Fratzola’s testimony. Defense
counsel explained that a low-grade instruction “informs the jury that expert
opinion is considered of a low-grade when the expert testifies not from
personal observation but expresses an opinion in response to a hypothetical
question.” (Id. at 303). The Commonwealth objected to the instruction,
claiming the proffered charge had been removed from the standard jury
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instructions. The Commonwealth further argued Ms. Fratzola did not even
render an opinion in this case; rather, she testified in an educational capacity
to inform the jurors about delayed reporting in child sexual abuse cases
generally, and she did not offer any opinion about Victim’s delayed reporting
in this case. The court agreed with the Commonwealth’s position and declined
to give Appellant’s requested charge. Nevertheless, the court said it would
give the standard jury instruction concerning expert testimony in general.
(Id. at 304). Appellant objected to the court’s ruling.
At the conclusion of trial, the jury convicted Appellant on all counts. On
June 21, 2019, the court sentenced Appellant to an aggregate term of 240 to
480 months’ imprisonment. The court entered an amended sentencing order
on July 15, 2019, fixing a typographical error concerning the dates of
Appellant’s credit for time served. Appellant timely filed a notice of appeal on
July 18, 2019, at docket No. 1210 MDA 2019, from the June 21, 2019
judgment of sentence. Appellant also filed a timely notice of appeal on July
18, 2019, at docket No. 1211 MDA 2019, from the amended July 15, 2019
judgment of sentence. On August 27, 2019, this Court sua sponte dismissed
as duplicative the appeal at docket No. 1210 MDA 2019. Appellant timely
complied with the trial court’s Pa.R.A.P. 1925(b) concise statement order.
Appellant raises two issues for our review:
Did the trial court err in failing to strike, over the objection
of defense counsel, Juror #11, who indicated that she could
not sleep and had nightmares after hearing [Victim]’s
testimony?
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Did the trial court err in denying [Appellant’s] request for a
low grade or value for expert witness instruction concerning
the testimony of Roberta Fratzola?
(Appellant’s Brief at 3).
In his first issue, Appellant argues Juror #11 was so affected by Victim’s
testimony that she could not sleep. Appellant asserts that Juror #11 said the
subject matter of the case disturbed her. Appellant acknowledges Juror #11’s
testimony that she could be fair and impartial, but Appellant suggests Juror
#11’s statement that she could not sleep based on the subject matter of the
case belies her claim. Appellant insists the court should have stricken Juror
#11 in an abundance of caution. Appellant concludes he was deprived of a
fair jury trial, and this Court must remand for a new trial. We disagree.
Our review of this issue implicates the following legal principles:
The decision to discharge a juror is within the sound
discretion of the trial court and will not be disturbed absent
an abuse of that discretion. This discretion exists even after
the jury has been impaneled and the juror sworn. The
common thread of the cases is that the trial judge, in his
sound discretion, may remove a juror and replace [her] with
an alternate juror whenever facts are presented which
convince the trial judge that the juror’s ability to perform
[her] duty as a juror is impaired.
Commonwealth v. Marrero, 217 A.3d 888, 890 (Pa.Super. 2019), appeal
denied, ___ Pa. ___, 226 A.3d 968 (2020) (internal citations and quotation
marks omitted). “[A] finding regarding a [juror’s] impartiality is based upon
determinations of demeanor and credibility that are peculiarly within a trial
court’s province. Its predominant function in determining juror bias involves
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credibility findings whose basis cannot be easily discerned from an appellate
record.” Commonwealth v. Rush, 162 A.3d 530, 537 (Pa.Super. 2017),
appeal denied, 642 Pa. 588, 170 A.3d 1049 (2017) (internal citations and
quotation marks omitted).
Further, “[i]t is the appellant’s burden to show that the jury was not
impartial.” Id. This Court has also decided that per se prejudice does not
result where a juror becomes upset during trial. See Commonwealth v.
Pander, 100 A.3d 626 (Pa.Super. 2014) (en banc) (holding appellate counsel
was not ineffective for failing to raise on appeal court’s refusal to strike juror;
fact that juror was disturbed by pictures of victim, by itself, does not indicate
juror’s inability to consider evidence impartially; where trial court was satisfied
by juror’s response that juror could remain fair, and where trial court has had
opportunity to view juror in question, we do not lightly reconsider court’s
decision; because juror repeatedly stated that she could remain fair and
impartial and was questioned by trial counsel and court, appellant’s
ineffectiveness claim fails).
Our Supreme Court has explained:
The test for determining whether a prospective juror should
be disqualified is whether [she] is willing and able to
eliminate the influence of any scruples and render a verdict
according to the evidence, and this is to be determined on
the basis of answers to questions and demeanor[.] It must
be determined whether any biases or prejudices can be put
aside on proper instruction of the court[.] A challenge for
cause should be granted when the prospective juror has
such a close relationship, familial, financial, or situational,
with the parties, counsel, victims, or witnesses that the
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court will presume a likelihood of prejudice or demonstrates
a likelihood of prejudice by his or her conduct or answers to
questions.
Commonwealth v. Briggs, 608 Pa. 430, 498-99, 12 A.3d 291, 333 (2011),
cert. denied, 565 U.S. 889, 132 S.Ct. 267, 181 L.Ed.2d 157 (2011) (internal
citation omitted). We employ “the same analysis in cases where a question
arises about a juror’s impartiality during trial.” Rush, supra at 538.
Instantly, on the second day of trial, Juror #11 informed tipstaff that
she was uncomfortable with the subject matter of the case and had difficulty
sleeping the night before.3 The court brought Juror #11 into chambers and
colloquied her, during which Juror #11 stated three times that she could be
fair and impartial, despite her discomfort with the facts of the case. Upon
Appellant’s motion to strike, the court colloquied Juror #11 once again, on the
record, and gave the parties an opportunity to ask questions. Following a
lengthy colloquy, Juror #11 repeatedly stated that she could be fair and
impartial. Juror #11 further confirmed that she had no fixed opinion
concerning Appellant’s guilt. Under these circumstances, the trial court
declined to remove Juror #11. We see no abuse of discretion concerning the
court’s ruling. See Marrero, supra; Rush, supra. Therefore, Appellant’s
first issue merits no relief.
In his second issue, Appellant argues the court should have given his
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3 Notwithstanding the phrasing of Appellant’s first issue on appeal, nothing
supports Appellant’s contention that Juror #11 said she had “nightmares.”
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requested low-grade jury instruction concerning Ms. Fratzola’s testimony.
Appellant asserts that Ms. Fratzola testified as an expert on delayed reporting
in child sexual abuse cases. Appellant claims Ms. Fratzola’s testimony was of
a low-grade because she did not make any personal observations of Victim or
review any evidence pertaining to this case. Appellant maintains Ms.
Fratzola’s testimony about why some children delay reporting sexual abuse
implicitly constituted hypothetical answers about why Victim delayed reporting
her alleged sexual abuse. Appellant contends this case is not just about
Victim’s failure to render a “prompt complaint,” but about multiple times
during which Victim failed to report the alleged abuse. Appellant concludes
the court deprived the jury of a full and complete statement of law and denied
Appellant a fair trial, and this Court must remand for a new trial. We disagree.
Our standard of review concerning a trial court’s decision on jury
instructions is well-settled:
[A]n appellate court will reverse a court’s decision [to deny
a requested jury instruction only] when it abused its
discretion or committed an error of law. [Our] key inquiry
is whether the instruction on a particular issue adequately,
accurately and clearly presents the law to the jury, and is
sufficient to guide the jury in its deliberations.
Commonwealth v. Cannavo, 199 A.3d 1282, 1286 (Pa.Super. 2018), appeal
denied, ___ Pa. ___, 217 A.3d 180 (2019) (internal citations and quotation
marks omitted). Additionally, “[t]he Suggested Standard Jury Instructions
themselves are not binding and do not alter the discretion afforded trial judges
in crafting jury instructions; rather, as their title suggests, the instructions are
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guides only.” Commonwealth v Simpson, 620 Pa. 60, 96 n.24, 66 A.3d
253, 274 n.24 (2013).
Generally, “[a]n instruction that expert opinion testimony is ‘low-grade’
evidence is proper when: 1) [t]he expert’s opinion is based on facts recited in
a hypothetical question; or 2) [t]he expert’s opinion is contradicted by direct
evidence.” Commonwealth v. Correa, 620 A.2d 497, 502 (Pa.Super. 1993),
appeal denied, 536 Pa. 638, 639 A.2d 24 (1993). Nevertheless, this Court
has explained that, “in actual practice, application of the low-grade witness
instruction is more constrained.” Commonwealth v. Hernandez, 615 A.2d
1337, 1344 (Pa.Super. 1992) (analyzing cases applying low-grade jury
instruction and concluding instruction is usually appropriate only in cases
involving opinion testimony by psychiatrist, where insanity defense has been
raised). In Hernandez, this Court rejected application of the low-grade jury
instruction stating:
A fair characterization of the low-grade witness instruction
would be that it was designed specifically for dealing with
the competency of lay witnesses and psychiatrists testifying
on questions of sanity.
A low-grade witness instruction is not applicable here. This
case is an involuntary deviate sexual intercourse case. No
one had been asked to testify as to [defendant’s] sanity in
a homicide. [The expert’s] statement was not rebutted by
other expert testimony, or by the physical evidence. There
is no basis for giving a low-grade witness instruction.
Id. at 1344.
Instantly, during the charging conference, Appellant requested a low-
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grade jury instruction concerning expert Roberta Fratzola’s testimony. The
Commonwealth objected to the instruction, claiming the proffered charge had
been removed from the standard jury instructions. The Commonwealth
further argued that Ms. Fratzola did not even render an opinion in this case;
rather, she testified in an educational capacity to inform the jurors about
delayed reporting in child sexual abuse cases generally, and she did not offer
any opinion about Victim’s delayed reporting in this case.
Our review of the record confirms that Ms. Fratzola testified about
delayed reporting in child abuse cases, generally. Ms. Fratzola explained there
are a variety of reasons why children delay reporting and that “[e]verybody is
different in how they tell and what they tell. So it’s really up to the child or
the adolescent when they tell it…. It’s their story to tell…” (N.T. Trial,
3/19/19, at 172). Ms. Fratzola did not testify about Victim specifically or
render any opinion on Victim’s credibility.
The court declined to give Appellant’s requested low-grade jury
instruction, and instead said it would give the standard jury instruction
concerning expert testimony generally. See Pa. SSJI (Crim), § 4.10A.
Additionally, the court gave the “failure to make prompt complaint” jury
instruction, over the Commonwealth’s objection. See Pa. SSJI (Crim), §
4.13A. Our review of the jury instructions confirms the trial court adequately,
accurately, and clearly stated the law. See Cannavo, supra. Given the
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limited application of the low-grade instruction, see Hernandez, supra,4 and
the removal of low-grade instruction from the standard jury instructions, we
see no reason to disturb the trial court’s denial of the requested jury
instruction. See Cannavo, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2020
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4 Appellant relies heavily on Commonwealth v. Davis, 518 Pa. 77, 541 A.2d
315 (1988), one of the few cases commenting on a low-grade jury instruction
not involving an insanity defense. Davis is distinguishable, however, because
the expert in that case opined, at least indirectly, on the victim’s credibility.
See id. at 80, 541 A.2d at 316 (reiterating expert’s testimony that “children
who have not been involved in sexual experiences typically do not fantasize
about sexual experiences” and “[m]y experience with children who have had
some type of sexual experiences when they report about it, typically it is based
upon some event that actually occurred and not some fantasized or fabricated
experience”). As previously stated, Ms. Fratzola offered no such opinion on
Victim’s credibility in this case.
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